Independent Assessor v FJS[2023] QCAT 244

REASONS FOR DECISION

1. [1]
   This is an application to review the decision of the first respondent on 17 May 2021 that each of ten allegations made against the second respondent by the applicant, alleging misconduct for the purposes of the Local Government Act 2009 (Qld) (“the Act”), was not sustained.  The first respondent is a party to the proceeding but, by a direction of a Senior Member on 12 January 2023, was excused from further appearance, unless an issue arose requiring the assistance of the first respondent, or as to costs.  For convenience, I shall refer to the second respondent just as “the respondent”.
2. [2]
   In a direction made on 15 March 2023 a non-publication order was made in relation to the identity of the “applicant” and any third party.  At the start of the hearing before me, it was agreed that this was an error, and the reference should have been to “second respondent” instead of “applicant”.  I varied the direction accordingly. 

Background

3. [3]
   The respondent was at the relevant time a councillor of a regional council.  On 12 March 2012, she received a donation to her election campaign funds of $900 from a company A, which was declared in accordance with the usual process for electoral donations at the time.  Between 27 June 2012 and 28 May 2014 on ten occasions she participated in a vote at a Council meeting to adopt the report of the Water and Waste Committee of the Council, of which she was not a member, which among other things recommended the awarding of particular contracts to one of two companies, B and C.  The Committee did not always recommend in favour of companies B or C; more often than not, it recommended contracts be let to competitors of B and C, but each time the respondent voted to adopt the report of the Committee. 
4. [4]
   In fact the companies A, B and C all had a common director, X, but it is agreed for the purpose of this proceeding that the respondent did not know at the time that this connection existed.  On each occasion she voted to adopt the recommendation of the Committee, whether a particular decision of the Committee favoured company B or company C, or a competitor of one or other company.  In 2019 she discovered that the three companies had the common director, as a result of an investigation made at her initiative.  After making this discovery, she disclosed what had occurred to the applicant.  Until then, this matter had not been investigated by the applicant. 
5. [5]
   On 17 February 2020 the applicant applied to the first respondent making ten allegations of misconduct against the respondent, one in relation to each of the votes in which she had participated, in each case alleging that she had engaged in misconduct pursuant to the Act s 176(3)(d) “as it then was”, by contravening the Act s 173(4), by failing to deal with a real or perceived conflict of interest in a transparent and accountable way.  Particulars given were that she voted to adopt the report and recommendations of the Committee, the matter was not an ordinary business matter, she had a personal interest because of the donation from A, because of the common directorship of X, that her conflict of interest was not merely because of the Act s 173(3), that she did not inform the meeting of her personal interest and in that way failed to deal with the real or perceived conflict of interest in a transparent and accountable way as required by the Act s 173(4).  On 17 May 2021 the first respondent found that each allegation was not sustained.  An application by the applicant to review that decision was filed in the Tribunal on 8 June 2021.
6. [6]
   One of the functions of the applicant is to investigate and deal with the conduct of councillors, if it is alleged or suspected to be misconduct: the Act s 150CU.  If after investigation the applicant is reasonably satisfied that the councillor’s conduct was misconduct, the applicant may apply to the Councillor Conduct Tribunal (“the conduct tribunal”) about the conduct: the Act s 150W(1)(c); s 150AJ(1)(a).  The conduct tribunal was required to decide whether or not the councillor had engaged in misconduct: the Act s 150AQ(1)(a).  Notice of its decision must be given to the applicant and to the councillor: the Act s 150AS(2)(b).  By the Act s 150AS(3), this is to be a QCAT information notice, and a person entitled to be given such a notice may apply to QCAT to review that decision: s 150AT.  The Tribunal therefore has jurisdiction to review the decision of the conduct tribunal in the present case.^[1] 

Relevant legislation

7. [7]
   In issue before the conduct tribunal were allegations of misconduct said to have occurred between 27 June 2012 and 25 June 2014.  During this period the Act had provisions dealing with misconduct by councillors.  Misconduct was defined in the Act s 176(3), at the beginning of that period in the following terms:

Misconduct is conduct, or a conspiracy or attempt to engage in conduct, of or by a councillor—

1. that adversely affects, or could adversely affect, (either directly or indirectly) the honest and impartial performance of the councillor’s responsibilities or exercise of the councillor’s powers; or

2. that is or involves—

1. the performance of the councillor’s responsibilities, or the exercise of the councillor’s powers, in a way that is not honest or is not impartial; or

2. a breach of the trust placed in the councillor; or

3. a misuse of information or material acquired in or in connection with the performance of the councillor’s responsibilities, whether the misuse is for the benefit of the councillor or someone else; or

3. that breaches section 171(3), 173(3), 173(4); or

4. that is referred to the department’s chief executive as misconduct under section 181.

8. [8]
   Section 173 referred to in s 176(3)(c) dealt with a councillor’s conflict of interest at a meeting.  Section 173(2) defined “conflict of interest” as follows:

A conflict of interest is a conflict between—

1. a councillor’s personal interests; and

2. the public interest;

that might lead to a decision that is contrary to the public interest. 

9. [9]
   The section had earlier explained that a real conflict of interest was a conflict of interest that actually existed, while a perceived conflict of interest was a situation where a councillor could reasonably be taken to have a conflict of interest in the matter: s 173(1).  This strikes me as a singularly obscure provision, which gives rise to a number of questions, including: Be taken by whom?  Perhaps there was an intention to produce a parallel with the difference between actual bias and apparent bias, in which case the hypothetical person who might take the councillor as having a conflict of interest is presumably one who is aware of all the material facts of the matter.  I shall return to this issue. 
10. [10]
    Section 173(3) provided:

The councillor must deal with a real conflict of interest or perceived conflict of interest in a transparent and accountable way.

11. [11]
    Section 173(4) then provided that this obligation included a specific obligation to inform the meeting of the councillor’s personal interest in the matter, and how the conflict of interest was to be dealt with as required by the section, which was not necessarily by not participating in the meeting: s 173(9). 
12. [12]
    Section 176(3) was replaced by the Local Government and Other Legislation Amendment Act 2012 (Qld) s 130, which added two paragraphs to s 176(3)(b), changed paragraph (d) so that it referred to a repeat of such conduct, and omitted the reference to s 173(3).^[2]  That section was also amended by that amendment act, so that the provision, which had imposed on a councillor an obligation to deal with a conflict of interest at a meeting in a transparent and accountable way, was moved from subsection (3) to subsection (4).  A new subsection (3) was inserted, which identified a number of circumstances which would not amount to a conflict of interest, none of which is relevant here, and the former s 173(4) became s 173(5), with the former s 173(9) becoming s 173(10). 
13. [13]
    The result was that, from 22 November 2012 until at least the end of the relevant period, the definition of “misconduct” was as follows: 

Misconduct is conduct, or a conspiracy or attempt to engage in conduct, of or by a councillor—

1. that adversely affects, or could adversely affect, (either directly or indirectly) the honest and impartial performance of the councillor’s responsibilities or exercise of the councillor’s powers; or

2. that is or involves—

1. the performance of the councillor’s responsibilities, or the exercise of the councillor’s powers, in a way that is not honest or is not impartial; or

2. a breach of the trust placed in the councillor; or

3. a misuse of information or material acquired in or in connection with the performance of the councillor’s responsibilities, whether the misuse is for the benefit of the councillor or someone else; or

4. a failure by the councillor to comply with a direction to leave a meeting of the local government or its committees by the chairperson presiding at the meeting; or

5. a refusal by the councillor to comply with a direction or order of the regional conduct review panel or tribunal about the councillor; or

3. that is a repeat of inappropriate conduct that the mayor or the department’s chief executive has ordered to be referred to the regional conduct review panel under section 181(2); or

4. that contravenes section 171(3) or 173(4). 

14. [14]
    It follows that at all material times a breach of the trust placed in the councillor, or a breach of the obligation to deal with a conflict of interest at a meeting in a transparent and accountable way, amounted to misconduct for the purposes of the Act.  The specific obligation to inform the meeting of the councillor’s personal interest in the matter remained, but after 22 November 2012 the failure to comply with it was no longer listed specifically in the definition of misconduct in s 176(3)(d).  The breach of trust, and the breach of s 173(4), were the matters alleged against the respondent in the proceeding in the conduct tribunal.  No complaint to that effect was made against the respondent at that time, however. 
15. [15]
    There were substantial changes to the provisions dealing with misconduct in 2018.  One amending Act, the Local Government (Councillor Complaints) and Other Legislation Amendment Act 2018 (Qld)(Act 8 of 2018), was in response to the report of a panel, which also recommended expanding the definition of misconduct and the orders which could be made, which the amending act was intended to achieve.^[3]
16. [16]
    The former provisions dealing with the conduct of councillors were replaced by a new Chapter 5A inserted by s 12, which included a new definition of “misconduct” in s 150L, although it contained various features of the earlier definitions: 

3. (1)
   The conduct of a councillor is misconduct if the conduct—

3. (a)
   adversely affects, directly or indirectly, the honest and impartial performance of the councillor’s functions, or the exercise of the councillor’s powers; or

3. (b)
   is or involves—

3. (i)
   a breach of the trust placed in the councillor, either knowingly or recklessly; or

3. (ii)
   a misuse of information or material acquired in, or in connection with, the performance of the councillor’s functions, whether the misuse is for the benefit of the councillor or for the benefit, or to the detriment, of another person; or

3. (c)
   contravenes any of the following—

3. (i)
   an order of the local government or the conduct tribunal;

3. (ii)
   the acceptable requests guidelines of the local government under section 170A;

3. (iii)
   a policy of the local government about the reimbursement of expenses;

3. (iv)
   section 150R, 170(2), 171(3) or 173(4) or (5).

3. (2)
   Also, the conduct of a councillor is misconduct if the conduct—

3. (a)
   is part of a course of conduct leading to the local government deciding to take action under section 150AG to discipline the councillor for inappropriate conduct on 3 occasions within a period of 1 year; or

3. (b)
   is of the same type stated in an order of the local government that if the councillor engages in the same type of conduct again, it will be dealt with as misconduct.  

3. (3)
   For subsection (2)(a), the conduct that led to the 3 occasions of disciplinary action, taken together, is the misconduct.

3. (4)
   It does not matter if the conduct happened outside the State.

17. [17]
    This section was contained in Part 3 of the new Chapter 5A, which provided the mechanism for dealing with inappropriate conduct, misconduct and corrupt conduct. Act 8 of 2018 established the conduct tribunal in place of the former Regional Conduct Review Panels and the Local Government Remuneration and Discipline Tribunal, and established the Independent Assessor who was principally responsible for investigating and pursuing issues of misconduct.  It created by s 150AT a right of review by QCAT, whereas previously there was an express prohibition on reviews or other legal challenges to conduct decisions under the Act.^[4] 
18. [18]
    Act 8 of 2018 also inserted a transitional provision, s 322, which provided that, in relation to conduct engaged in by a councillor before the commencement (including conduct the subject of an existing complaint) the conduct tribunal, in deciding how to deal with the conduct, must apply the former conduct definitions to the conduct.  It was expressed as a mandatory provision.  The conduct of the respondent alleged to be misconduct had occurred long before, so prima facie that provision applied.  There was some exposition of the term “former conduct definitions” in s 322(4), as including the definition of “misconduct” under former s 176(3).  The meaning of “former” for the purposes of this section was defined in s 316 thus:

former, for a provision of this Act, means as in force immediately before the commencement of the section in which the provision is mentioned

19. [19]
    Before Act 8 of 2018 commenced however, there was other legislation passed also amending the Act.  This may be identified as Act 9 of 2018,^[5] and was also concerned with amending the City of Brisbane Act 2010 and the Electoral Act 1992, although Part 4 amended the Act.   This was prepared in response to a report from the Crime and Corruption Commission, and a report from the Ombudsman.  The objective was to ban donations to candidates from property developers, and to strengthen the processes associated with the management of conflicts of interest and penalties for non-compliance.^[6]  One change was to make it an offence to fail to inform a local government meeting of a conflict of interest, instead of just misconduct.^[7] 
20. [20]
    Act 9 of 2018 s 24 inserted a new Chapter 6 Part 2 division 5A, dealing with a councillor’s personal interests in council matters.  It included s 177D which identified what a conflict of interest was, and s 177E, which covered a councillor’s conflict of interest at a meeting, including s 177E(2), making it an offence to fail to declare a conflict of interest at the meeting.  This was previously dealt with by s 173, which was omitted by s 23 of Act 9 of 2018.  As well, s 176 was amended to omit from the definition of misconduct a breach of s 173(4).^[8] 
21. [21]
    Before the Bill was passed, it was amended by the government, to include a number of additional offences in the list for which a councillor would on conviction be automatically disqualified as a councillor, and to provide for the automatic suspension of a councillor if charged with an offence for which on conviction the councillor would be automatically disqualified.  The powers of the Minister were widened, and there were some amendments to align with Act 8 of 2018, which had not then commenced.  The effect was that, because the failure to declare a conflict of interest was no longer to be misconduct, but to be an offence, and there was a desire to introduce that change quickly, the definition of “misconduct” in s 176 was amended by s 25, and the new definition of “misconduct” in s 150L, to be inserted by Act 8 of 2018, was also amended, by s 26A. 
22. [22]
    The 2018 amending acts commenced at three different times during the year.  First cab off the rank was the bulk of the amendments made by Act 9 of 2018, which commenced on assent on 6 March 2018, but not the proposed amendment of s 150L, which was not then in the Act.^[9]  Then various bits of Act 8 of 2018 commenced on 20 July 2018, including parts of the new Chapter 5A, but essentially only those provisions which put in place the Councillor Conduct Tribunal, the Independent Assessor and various other people for the new enforcement mechanism.  The definition of “misconduct” in s 176 remained, (as amended by Act 9 of 2018) and neither s 316 or s 322 commenced.  The balance of Act 8 of 2018 commenced on 3 December 2018, and the remaining sections in Part 4 of Act 9 of 2018 (including s 26A) commenced immediately after. 
23. [23]
    The significance of this is that the definition of “misconduct” in s 176(3) of the Act as at 2 December 2018 was different from the definitions in force in the period 27 June 2012 to 25 June 2014, although the only amendment made (after the formal amendment made by Act 21 of 2014) was the amendment made by Act 9 of 2018.  As at 2 December 2018, the definition of “misconduct” in s 176(3) was:

Misconduct is conduct, or a conspiracy or attempt to engage in conduct, of or by a councillor—

1. that adversely affects, or could adversely affect, (either directly or indirectly) the honest and impartial performance of the councillor’s responsibilities or exercise of the councillor’s powers; or

2. that is or involves—

1. the performance of the councillor’s responsibilities, or the exercise of the councillor’s powers, in a way that is not honest or is not impartial; or

2. a breach of the trust placed in the councillor; or

3. a misuse of information or material acquired in or in connection with the performance of the councillor’s responsibilities, whether the misuse is for the benefit of the councillor or someone else; or

4. a failure by the councillor to comply with a direction to leave a meeting of the local government or its committees by the chairperson presiding at the meeting; or

5. a refusal by the councillor to comply with a direction or order of the regional conduct review panel or tribunal about the councillor; or

3. that is a repeat of inappropriate conduct that the mayor or the department’s chief executive has ordered to be referred to the regional conduct review panel under section 181(2); or

4. that contravenes: section 171(3) or 175G(2).

24. [24]
    Most of the elements in this definition are common to all three versions.  One difference, of some relevance here, is that at the time of the relevant conduct the definition included conduct that contravened s 173(4),^[10] but that reference had been repealed by 2 December 2018, as such conduct had been made an offence.  By 2 December 2018 the conflict of interest provisions had been moved, and the meaning of conflict of interest was contained, in much the same terms, in s 175D, while the obligations of a councillor at a meeting in relation to a conflict of interest were set out in s 175E, in terms similar to those previously in s 173.  But a breach of the obligations on a councillor in s 175E was not made “misconduct” expressly by s 176(3).  In any case, a failure to comply with the obligation in s 173(4) was included in the definition of misconduct at the time of the relevant conduct of the respondent.
25. [25]
    The Act has been amended subsequently, but not in a way that either party suggested was relevant to the matters in issue in this review. 

Applicant’s submissions

26. [26]
    The first issue was as to the effect of s 322.  The applicant submitted that the result of s 322, taking into account the definition of “former” in s 316, was that the definition of misconduct in the Act as at 2 December 2018 applied to all conduct which occurred prior to 3 December 2018.  It followed that it applied to the relevant conduct of the respondent.  This was the result of applying the words used in s 322.  This turned on the definition of “former” in s 316, which may be compared with the definition in s 337 for Part 16 of the Act: 

Former, for a provision of this Act, means the provision as in force from time to time before the commencement. 

27. [27]
    It was submitted that the legislature had deliberately chosen not to adopt this approach with s 316.  This was consistent with the requirement that existing complaints as at 3 December 2018 be dealt with under the Chapter 5A of the Act which was introduced by the 2018 amending Act.  The applicant accepted that this gave the provisions retrospective effect, but submitted that the wording was so clear that the retrospective operation of the provisions could not be avoided. 

Respondent’s submissions

28. [28]
    The respondent agreed that the effect of the definition of “former” in s 316 was that s 322 applied the definition of misconduct in the Act as it stood on 2 December 2018, but submitted that this meant that only conduct which occurred at a time when that definition was in place was caught by it, with the result that, relevantly, earlier conduct was no longer capable of being dealt with as misconduct under the Act.  It followed that there was no jurisdiction for the conduct tribunal to deal with the allegations brought by the appellant, and indeed that the review was not valid either. 

Consideration

29. [29]
    The issue is one of statutory interpretation, the principles of which are well established.^[11]  I consider that the key to the interpretation of s 322 lies in an understanding of the interaction of the two amending Acts in 2018.  If Act 9 of 2018 had not existed, the effect of s 322 on the definition of “misconduct” would have been to preserve, for conduct prior to the commencement of the new regime in Chapter 5A, the definition in s 176(3) which had been unchanged since 2014, and had had no change of any consequence since 2012.  It was drafted in a context where Act 8 of 2018 replaced that definition with a new, or at least different, one in a different section.  Much the same applied to the other “former conduct definitions” in s 322(4).  The definition of “inappropriate conduct” was in the same terms as when the Act was passed in 2009, s 177A which was included in the Act in 2011 had not been amended since 2012,^[12] and s 181 was in the same terms as substituted in 2012.^[13]  In 2018 it may well have been thought that the definitions in the sections identified in s 322(4) were of long enough standing to suffice for the purpose. 
30. [30]
    The proposition that the effect of s 322 was that anything that occurred prior to the enactment of the definition of misconduct in the Act as at 2 December 2018, that is, the definition in s 176(3), which came into force on 6 March 2018 as a result of the amendment made by Act 9 of 2018, is inconsistent with the fact that s 322 was provided for in the Bill for Act 8 of 2018 when it was introduced in February 2018, a month before the Bill for Act 9 of 2018 was introduced, which made that amendment to s 176(3).  As well, part of the new Chapter 5A set out in s 12 of Act 8 of 2018 was a new s 150M, which provided that the complaint procedure about councillors applied to former councillors, but did not incorporate the former limitation period of two years from ceasing to be a councillor in the former s 176A, inserted in 2012.  The Explanatory Note made it clear that the government did not want a time limit on when complaints against former councillors could be brought.^[14]  I therefore reject this submission on behalf of the respondent. 
31. [31]
    It is also clear, from the terms of the Explanatory Notes for the Bills for both Acts in 2018, that the intention in each case was to make the system of disciplining councillors more rigorous, in various ways.  It would be a little odd if the effect of amending the Act, to make failing to declare a conflict of interest at a meeting a criminal offence as from 6 March 2018, was that any such failure prior to that date could not even be dealt with as misconduct.  There is no suggestion that the offence provision was to apply to such a failure prior to 6 March 2018.^[15]  That was not beyond the legislative competence of the Parliament, but there is a strong presumption against it, and very clear words are usually required to achieve that outcome.^[16] 
32. [32]
    Significantly, there was no reference in the Explanatory Note for the Bill for Act 8 of 2018, in the section dealing with consistency with fundamental legislative principles, to any retrospective operation of the Act as amended, either in relation to any new offence, or in relation to any other change to the definition of “misconduct”.^[17]  There is nothing in the Notes about the proposed s 322 which suggests that it has any retrospective effect, either in imposing a criminal sanction retrospectively, or in changing the definitions retrospectively.^[18]  This is significant in the context of the principle of legality.^[19]
33. [33]
    I do not consider that the use of a different formulation in s 337 is of significance, as that was inserted by Act 20 of 2020 s 52, in connection with amendments made by that later amending act.  Of greater significance is that s 320, also in Part 12 of the Act, inserted by s 32 of Act 8 of 2018, spoke about an order made under s 180 or s 181 “as in force from time to time before the commencement” as something that could be taken into account for certain purposes, if it was substantially the same as an order which could be made under Chapter 5A.  That provision was speaking about an order which had already been made, but it uses the correct approach to capture different versions of the sections, taking into account amendments made from time to time, not that either section had been amended much since the Act was passed.^[20]  Further, the penalties which could be imposed in respect of pre-commencement conduct under s 322(2) were those substantially the same as an order which could have been made under s 180 or s 181. 
34. [34]
    The other curious feature about the definition of “former” in s 316 is that, if the applicant’s interpretation is correct, it gave to the former conduct definitions a retrospective operation which they had not previously had.  In the absence of any special transitional provision, the effect of an amendment of the definitions was that the amended versions would only operate prospectively.^[21]  As at 2 December 2018 the various former conduct definitions had no retrospective effect, and the definitions operated in their terms as in force from time to time.  There were no relevant transitional provisions in Act 9 of 2018, or in any earlier amending act.^[22] 
35. [35]
    Act 9 of 2018, as introduced, had a provision which had some element of retrospectivity, in that donations from property developers made after the introduction of the Bill for the Act had to be repaid, as was recognised in the Explanatory Note.^[23]  The amendments made in response to an examination by a Committee also had elements of retrospectivity, as discussed in a further Explanatory Note, but the only aspects identified were the provisions for automatic disqualification for persons convicted before the amendment of what had become a disqualifying offence by the amendments, and the automatic suspension of a councillor who had already been charged with a disqualifying offence.^[24]  
36. [36]
    Both Bills were amended in Committee, at the instance of the Minister, to improve the way in which the two amending acts would work together, something which suggests that this was not something carefully worked out before the Bills were introduced.  But obviously at some point some consideration was given to that issue, even if it seems that insufficient consideration was given to the effect of the definition of “former” in what was to be s 316. 
37. [37]
    It is arguable that the effect of applying the definition of “misconduct” as it was on 2 December 2018, rather than the definition as it was at the time, meant that a case of misconduct against the respondent was more difficult to make out, so that the respondent was no worse off, and probably better off, if the definition introduced by Act 9 of 2018 were made retrospective.  But the issue turns on the overall effect of the changes in the definitions, not how they operate in a particular case, and the broad effect of the amendments made to the definition was to give it a wider operation.  That is what matters in terms of a consideration of the true interpretation of the transitional provisions. 
38. [38]
    There are considerations both ways, but on the whole I consider that the presumption against retrospectivity and the absence of any reference to any intended retrospective operation in the Explanatory Notes for the Bill for Act 8 of 2018 strongly suggest that there was no intention to make the provisions of the Act in relation to misconduct in force immediately prior to 3 December 2018 retrospective, back to the passing of the Act in 2009.  Rather, the intention was to preserve, in relation to allegations of past misconduct, the set of provisions defining misconduct in force at that time as they were, that is, with no retrospective operation, but with past misconduct defined by the definitions in force as they were from time to time.  That was the situation which applied at that time, and I consider that the legislative intention was to preserve that situation, to be enforced by the new mechanism in Chapter 5A. 
39. [39]
    I consider that s 322 did not have the effect of changing the definitions in force as at 2 December 2018, so as to give them retrospective operation.  The definitions in force as at 2 December 2018 had no retrospective operation, and it does no violence to the language of s 322 to read it, with the definition of former in s 316, as simply preserving that situation in relation to earlier conduct.  There is a presumption, reinforced by the Legislative Standards Act (Qld) 1992 s 4(3)(g), against retrospective operation of acts, and I do not consider that the presumption is overcome in this case.  Accordingly I also reject the interpretation contended for by the applicant.   It follows that a failure to declare a conflict of interest at a meeting, as required by the Act, was within the definition of misconduct at all relevant times.  In this respect, I consider that the conduct tribunal arrived at the correct decision. 

Conflict of interest

40. [40]
    The next issue in the review is whether the failure of the respondent to declare the donation she had received from the company with the common director with two other companies who were affected by a decision of the council to accept the recommendation of the relevant subcommittee amounted to misconduct for the purposes of the Act, on the basis of a conflict of interest, either real or apparent.  This question can be reframed, perhaps tendentiously, as, did the Act at the relevant times require a councillor to declare to a meeting something of which she was not aware.  Formulated in that way, the question really answers itself. 
41. [41]
    One thing that has remained constant during the relevant period has been the definition of “conflict of interest” in the Act, as quoted earlier.  If a councillor was not aware of a material fact or facts which could show that the councillor’s personal  interests were engaged, there will necessarily be no conflict between the public interest and the councillor’s personal interests, and there would necessarily be no risk that the councillor might be led to a decision that was contrary to the public interest.  A councillor is necessarily not going to be influenced by something of which she is not aware.^[25]  It is accepted for the purposes of this review that the respondent was not aware of the connection between the donation and companies B and C, so that situation was not going to risk leading her away from a decision in the public interest. 
42. [42]
    That this followed from the definition of conflict of interest was confirmed by the fact that s 173 of the Act provided, at all material times, that one thing a councillor had to do in order to deal with a conflict of interest in a transparent and accountable way was to declare it at a meeting.  Obviously a councillor was not going to be able to declare the existence of a personal interest if she was not aware of a fact or facts which served to show the existence of that personal interest.  The logic behind the use of so-called “Chinese Walls” to manage issues of conflict of interest is that the relevant people will be kept unaware of the existence of the facts showing a conflict, so that they cannot be influenced by them.^[26] 
43. [43]
    Since this is based on the definition of “conflict of interest”, it follows that there can be neither a real nor a perceived conflict of interest in these circumstances.^[27]  The only way in which there could be a perceived conflict of interest would be if the hypothetical person taking the councillor to have a conflict of interest knew of the relevant facts not known to the councillor, and did not know that the councillor did not know those facts, or, perhaps, is to be taken to have assumed that the councillor knew those facts.  That in my view would be a completely artificial approach to a question of the existence of a conflict of interest, and would necessarily give rise to a situation were the councillor was required to deal, in a transparent and accountable way, with something of which she was in fact unaware.  That strikes me as an absurd interpretation of the section. 
44. [44]
    It may be that the purpose of the provision covering a perceived conflict of interest is to make it clear that the test for the existence of an obligation to deal with a conflict of interest is objective, in the sense that, if a reasonable person, in the position of the councillor and knowing what the councillor knows, would perceive that there was a conflict of interest, the obligation arises.  Perhaps it is to guard against a situation where a councillor might avoid a finding of conflict of interest through moral obtuseness, on the basis that it is reasonable for the councillor to be obliged to declare a conflict of interest if a reasonable person in his or her position would do so.^[28]  It is to guard against Nelsonian blindness. 
45. [45]
    Alternative, it may be that its function was to deal with a situation where a councillor, who in fact had no personal interest relevant to the definition of “conflict of interest”, behaved in such a way that a reasonable observer would conclude that the councillor had such an interest, so as to appear to be affected by a conflict of interest.  It is difficult to think of an example of how that could occur in practice, but it would be the true equivalent of apparent bias, at least on a “prejudgment” basis.  This is clear from the comments in the authorities relied on by the applicant, which refer to the relevance to the objective appearance of possible bias.^[29]  For present purposes, it is sufficient to note that the applicant’s case was not framed in such terms, and there was no evidence of any behaviour capable of sustaining such an allegation.  Besides, in my view, the statements in the cases relied on are directed to a different point.
46. [46]
    I do not consider that an analogy with apparent bias is particularly helpful.^[30]  The latter is really derived from the proposition that justice must not only be done, it must manifestly be seen to be done,^[31] so that if a judicial officer behaves in a way which would appear to be biased to an informed intelligent observer, that is inconsistent with justice being seen to be done.^[32]  A judge may behave impeccably in court and still have actual bias against one party, or in favour of another.  On the other hand, it is generally what is said and done by the judge in the court^[33] which will give rise to the appearance of prejudgment bias, regardless of whether the judge is in fact entirely indifferent between the parties, in the relevant sense.  In the case of interest bias, usually the factual basis for the interest will be obvious, as in the case of inconsistent roles, and the issue will be as to the significance of that conflict.^[34] 
47. [47]
    Even then however I do not consider that a case of apparent bias could be made out on the basis of facts not known to the judge but known to the independent observer.^[35]  Consider a case like Clenae Pty Ltd,^[36] where a judge has heard a trial involving a public company and before judgment is delivered, as a result of the death of a distant relative, the judge inherits a substantial shareholding in that company.  If the outcome of the trial could potentially affect the market value of the shares, the judge would in fact have an interest.^[37]  In Ebner nothing was said about the state of knowledge of the judges, but it appears to follow from the statement of principle at [8], and from the discussion about whether the inheritance should have been disclosed, that the judge was aware of it.  But if the judge had no reason to expect such a thing, and was in fact unaware of the inheritance until after judgment had been delivered, I cannot see how the second step identified in Ebner at [8] for establishing apparent bias can be satisfied. 
48. [48]
    The conduct tribunal found that there was no real conflict of interest, but there was a perceived conflict of interest.  I do not agree with the latter conclusion, and consider that there was neither a real nor a perceived conflict of interest on the present case. 

Review of decision of the conduct tribunal

49. [49]
    The respondent also submitted that, even if there was jurisdiction in the conduct tribunal to investigate the applicant’s allegations of misconduct, having decided that they were not sustained, there had been no order made by way of sanction, and so there could be no review by the Tribunal of that decision.  This was based on the terms of the Act s 322(3), which spoke of Chapter 5A applying to an “order” mentioned in s 322(2).  What s 322(2) mentioned about orders was that only orders substantially the same as those that could have been made under the former s 180 could be made by the conduct tribunal.  It was submitted that the effect of this was that, unless an order was made in compliance with s 322(2), Chapter 5A did not apply, so the provision in that Chapter for review by the Tribunal did not apply.  In effect, if the allegation was not made out and a sanction imposed, there was no right of review. 
50. [50]
    I do not accept that reasoning.  Once Chapter 5A came into operation, it provided in general terms for the procedure to be followed for dealing with complaints of misconduct brought against a councillor, and relevantly for the applicant to bring them before the conduct tribunal.  Chapter 5A provided a new set of sanctions which the conduct tribunal could impose if an allegation of misconduct were made out,^[38] and the function of s 322(2)(c) was to limit the sanctions imposed to those which would have been imposed under the former regime.  In short it was a limitation on the power of the conduct tribunal to impose a sanction, and the function of s 322(3) was to make it clear – by removing any doubt – that otherwise Chapter 5A applied to such order as was made within that limitation.  That is clear enough from the terms of the Act as a whole.  That is all that the subsection did.  This submission by the respondent is also rejected. 

Breach of trust

51. [51]
    This can also be dealt with succinctly.  The applicant’s case as particularised was based on the failure to disclose the supposed conflict of interest, which I consider did not exist.  It follows from the reasons I have given above that there was no breach by the respondent of the principle in the Act s 4(2)(a), that there be “transparent and effective processes, and decision-making in the public interest.”  The applicant has certainly failed to establish that the behaviour of the respondent was in any way illegal, indeed I have seen no indication that the applicant even tried, and that allegation should never have been made.  My earlier reasoning also shows that the conduct of the respondent, as particularised, was not unethical.  It follows that there was no breach of the principle in the Act s 4(2)(e). 
52. [52]
    I was not referred to any authorities on the meaning of the concept of “breach of the trust placed in the councillor” for the purposes of the Act.  The applicant’s case was particularised and advanced on the basis that this was made out by a breach of the local government principles in s 4(2) of the Act, by the failure to disclose.  That case has not been made out, and it follows that there has been no misconduct established on that basis.  In the circumstances, I do not propose to consider the question of just what the Act means by “breach of the trust placed in the councillor”, a nebulous expression, having already devoted too much time to some of the various imponderables in the Act. 
53. [53]
    The decision of the Tribunal on the review is that the decision of the conduct tribunal is confirmed.  I will give directions for submissions as to costs.