Johnston v Brisbane City Council & Ors

Alan Wilson J

30 October 2014

In this case the Court reviewed an application for judicial review of a decision of the Brisbane City Council Councillor Conduct Review Panel (the “Panel”), made under the City of Brisbane Act (the “Act”). Pursuant to the Act, complaints about the conduct of Brisbane City Councillors are heard by the Panel, which may impose various sanctions and penalties if the complaint is upheld. [1]. The facts giving rise to this application are as follows. A complaint had been made, and subsequently upheld, against Councillor Johnston (the “applicant”). Pursuant to this decision, the Panel ordered the applicant pay a fine and make an apology in a specified manner – dictating not only the place and time, but also the language to be used. [4], Schedule A. The applicant failed to make the apology, and a further complaint was made against her and upheld – the Panel, this time, ordering that (a) the applicant make the apology; (b) pay a further fine; and (c) that a copy of the Panel’s decision be given to the Chief Executive Local Government. The applicant challenged the decision and orders (a) and (c), arguing that the Panel did not have jurisdiction to: (a) make any decision regarding her conduct; and (b) make orders in the form that it did. [18].

Pursuant to s 178(8)(a) of the Act, decisions of the Panel are not subject to appeal. Though, prima facie, excluding review, the Court noted that this provision would not prevent the Court reviewing the Panel’s decision were the applicant to establish that it was affected by jurisdictional error, see Kirk v Industrial Court of NSW. [17]. A tribunal or inferior court will fall into jurisdictional error where it “misconstrue[s] . . . the relevant statute thereby misconceiving the nature of the function which [it] is performing or the extent of its powers in the circumstances of the particular case.” [19]; [21].

Making a Decision

Addressing the question of whether the Panel had exceeded its authority by making the impugned decision, the Court concluded that the Act did authorise the making of such a decision. [35]. In doing this it rejected the applicant’s contention that because her impugned conduct occurred within the course of a council meeting the Panel lacked jurisdiction. [34]. Though s 178(2) of the Act appears to remove the discipline of councillors at a meeting from the ambit of the Panel’s powers, [24]-[25], the Panel argued, and the Court agreed, that the structure of the disciplinary provisions in Chapter 6, Part 2 of the Act, leant itself to the inverse conclusion. Specifically, the Court relied upon the distinction between the powers given to the chairperson to deal with disorderly conduct – a breach of the Council’s rules of procedure in a meeting – under s 186A in Division 7 and the Panel to deal with misconduct – defined as including “a refusal to comply with an order of the Panel, s 178(3)(b)(iv) – under s 178 in Division 6. [27]-[30]. Given the structure of the Act, the Court considered that s 178(2) must have a specific meaning, and held that properly read this provision simply reiterates the rule that powers under Division 6 are not to be exercised in response to conduct breaching procedural rules (disorderly conduct). [31], [34]. Given the applicant’s conduct was misconduct for the purposes of the Act, the Panel had jurisdiction to make a decision.

Form of Orders

Turning to a consideration of the second alleged ground of jurisdictional error, that the Panel acted without jurisdiction when stipulating the “where, when, how, and in what terms the apology should be[] made,” [36], the Court concluded that a proper interpretation of the Act did not provide for this level of prescription. [56], see also [45]-[47]. It did, however, suggest that it may have been reasonable for the Panel to “give directions about how and when the apology should have been given” to ensure that the correct meeting procedures were complied with. [52]-[56] In reaching this decision the Court relied upon the fact that:

• Section 183(2)(b) of the Act was sparsely expressed – providing only that the Panel may make “an order that the councillor make . . . an apology.” [39];
• The relevant sub-section simply provides a list of orders that the Panel may impose, and does not imply “any power to exercise any additional or expanded discretion.” [41], see also [39]-[40];
• Adjacent sub-sections are expressed in a significantly more detailed matter – the Court considering that it would be inconsistent to interpret another part of the same section as conferring the same level of detail in the absence of a similar form of expression. [42]-[44]; and
• The severity of the consequences for not complying with an order are such that “[s]pecifying how the apology should be given, in explicit detail” is excessive and “potentially oppressive.” [45].

Finally the Court addressed whether the Panel’s order that a copy of its decision be delivered to the Chief Executive Local Government “with a view . . . to amend relevant legislation” to allow for the removal or suspension of a councillor for misconduct was also beyond the scope of the Panel’s authority. [59]. Given its previous conclusion that s 183 of the Act must “be interpreted . . . as a provision which comprehensively and concussively lists the orders the Panel is empowered to make” and that the power to make ‘recommendations,’ such as this, is not listed, the Court held that it too went beyond the boundaries of the Panel’s jurisdiction. [59]-[61].

Given these conclusions, the Court granted the applicant declaratory relief to the effect that the offending orders of the Panel were void and would be set aside. [73]-[74].