Queensland Judgments
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Independent Assessor v Councillor Conduct Tribunal & Anor

Unreported Citation:

[2020] QSC 316

EDITOR'S NOTE

In this case, Flanagan J had to consider whether an independent assessor appointed under s 150 of the Local Government Act 2009 could unilaterally withdraw an application to the Councillor Conduct Tribunal on the basis of s 24AA of the Acts Interpretation Act 1954. His Honour held that the independent assessor could not unilaterally withdraw the application and that the Tribunal had valid jurisdiction to proceed notwithstanding the purported revocation of the application.

Flanagan J

16 October 2020

Background

The applicant was an independent assessor under s 150CT of the Local Government Act 2009 (the “LG Act”). The respondent, the Councillor Conduct Tribunal (the “Tribunal”), was also established under the LG Act to investigate and make determinations relating to the conduct of councillors. [1].

In January 2020, the applicant applied to the Tribunal for a determination relating to the conduct of the second respondent, Mr Waistell. The underlying conduct concerned alleged breaches of the Scenic Rim Regional Council’s Acceptable Requests Guidelines. [2].

However, in March 2020, the applicant purported to revoke the application by writing to the Tribunal and citing s 24AA of the Acts Interpretation Act 1954 (“AIA”) as the basis upon which it was revoking its application. The reason for requesting revocation of the application was that Councillor Waistell had not in fact nominated for the 2020 local government election. The applicant therefore no longer considered misconduct proceedings to be in the public interest. [6].

Nevertheless, the Tribunal decided to proceed and issued directions for the hearing of the application. The applicant challenged the Tribunal’s decision to proceed on the basis that it no longer had any lawful jurisdiction to continue to conduct a hearing. [1].

Submissions

Before Flanagan J, the applicant sought declarations under the administrative character and therefore subject to review under the Judicial Review Act 1991 (“JR Act”) that it had revoked and rescinded its application to the tribunal and that the Tribunal’s decision to proceed was therefore beyond its power. [20].

Justice Flanagan summarised the applicant’s primary submission as an argument that s 24AA of the AIA applies to the LG Act and therefore allowed the applicant to revoke or rescind its application with the effect that it would be “as if the application had not been filed”. [21]. The applicant contended that the obligatory language of the LG Act, which requires the Tribunal to conduct a hearing, is premised upon the existence of a continuing application. [21], [23].

The Tribunal submitted that the LG Act evinces the intention to exclude the operation of s 24AA of the AIA with the effect that the applicant could not revoke its application. [24]. The Tribunal submitted that a power is not adjudicative in nature does not necessarily mean that it can be revoked. [25], [26].

Consideration by Flanagan J

Justice Flanagan considered that the question of whether s 24AA of the AIA is displaced by a contrary intention in the LG Act is a matter of the proper construction of the LG Act. [30] Citing the observations of McHugh J in Pfeiffer v Stevens (2001) 209 CLR 57, Flanagan J considered that the key issue was whether the applicant, in seeking to revoke a decision made under s 150W(1)(c) of the LG Act, changed “the character of the legislation”. [35].

Justice Flanagan noted that it could be accepted that a decision of an independent assessor under s 150W(1)(c) of the LG Act is not a decision which is adjudicative in nature. Rather, the issue is whether the applicant, having decided to make an application to the Tribunal, has “exhausted by her first exercise” the power to make such a decision. [41].

Justice Flanagan identified four factors which indicated the applicant could not unilaterally withdraw its application.

First, his Honour noted that s 150M provides that Ch 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. That the Tribunal may take disciplinary action against a person who is no longer a councillor is confirmed in s 150AR. Justice Flanagan found that the effect of s 150M is that Ch 5A applied to Mr Waistell irrespective of whether he had nominated in the election. Justice Flanagan found this was a factor weighing against a construction that the applicant was empowered to revoke a decision to apply to the Tribunal merely because the councillor did not intend to nominate for further election. [47].

Second, Flanagan J noted that the LG Act provided the applicant a wide discretion to dismiss a complaint or decide not to take any further action before an application was made to the Tribunal. This suggested that the power to decide to apply to the Tribunal is a power to be exercised only once. [50].

Third, pursuant to s 150AO, the applicant ceases to be the investigator and is made a respondent to the application and a party to the hearing. Justice Flanagan considered that there is no legislative intention that the applicant could then once again adopt the role of investigator and revisit the decision to apply to the Tribunal. [52].

Fourth, Flanagan noted that in his view that the LG Act displaces the operation of s 24AA of the AIA is not founded on the mandatory language of ss 150AL and 150AQ of the LG Act. [53].

Justice Flanagan rejected the submission that the applicant was acting in a role analogous to a prosecutor in a criminal proceeding. [54]. His Honour further noted that an application to the Tribunal involves more than merely deciding rights inter partes. Rather, the process seeks to achieve one of the purposes of the LG Act – the provision of a system of local government that is “accountable, effective, efficient and sustainable”. [56].

Justice Flanagan considered that the Tribunal’s procedures as set out in the LG Act were “sufficiently broad” to allow the Tribunal to consider an application by the applicant to withdraw an application. [56]. Therefore, his Honour found that no error had been demonstrated by the applicant in the Tribunal’s proposed conduct of hearing and determining the application. [57]. The application was dismissed without costs. [58].

K Anderson      

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