Dismissed Councillor does not find relief from the Queensland Supreme Court

In brief

The case of Loft v Minister for Local Government, Minister for Racing and Minister for Multicultural Affairs [2018] QSC 96 concerned an application to the Queensland Supreme Court by the Applicant seeking a review of the Minister for Local Government, Minister for Racing and Minister for Multicultural Affairs' decision to recommend to the Governor in Council that the Applicant be dismissed as a Councillor and the Mayor of a local government.

The Applicant sought orders setting aside the Governor in Council's decision to dismiss the Applicant, and also a declaration from the Court that the Local Government (Fraser Coast Regional Council – Dismissal of Councillor) Amendment Regulation 2018 (Regulation), which was passed to perfect the dismissal, is invalid.

The Court did not accept the Applicant's grounds of review for the Respondent's decision which were as follows:

1. The Respondent unreasonably refused the Applicant's request for a time extension to respond to the notice that notified the Applicant that the Respondent would be recommending dismissal.

2. The Respondent failed to take into account relevant considerations.

3. The Respondent took an irrelevant consideration into account.

4. A breach of natural justice occurred by the Respondent failing to acknowledge that a complaint was unproved.

5. The Respondent did not rely on any evidence or material to justify the findings.

6. The exercise of the power to dismiss the Applicant was so unreasonable that no reasonable person could have exercised the power.

 As the Applicant failed to substantiate any ground of review, the Court dismissed the application and ordered that the Applicant pay the Respondent's costs on a standard basis.

Respondent's notice to the Applicant set out the reasons for its decision to recommend to the Governor in Council that the Applicant be dismissed

On 25 January 2018, the Respondent issued a notice to the Applicant under section 120 of the Local Government Act 2009 (LGA) which notified the Applicant of the Respondent's decision to exercise its power under section 122(2)(c) of the LGA to recommend to the Governor in Council that the Applicant be dismissed as a Councillor.

The notice initially set out a summary of the 11 disciplinary findings that had been made against the Applicant, followed by the allegation against the Applicant which concerned a "leaked" email to an Australian Broadcasting Corporation journalist (ABC Complaint). The ABC Complaint was at the time under review by the Tribunal, but after the Respondent had recommended that the Applicant be dismissed, the Tribunal held the ABC Complaint to be “misconceived and lacking in substance” and therefore not made out.

The notice also set out the Respondent's reasons for recommending to the Governor in Council that the Applicant be dismissed, which included reliance on the 11 disciplinary findings and the ABC Complaint. Based on those reasons, the Respondent reasonably believed that the Applicant had breached the Local Government principles, which are set out in the LGA, and was incapable of discharging the responsibilities of a Councillor.

Court noted that section 144 of the LGA contains a provision stating the decision in question cannot be appealed but determines that the section cannot override the Court's supervisory powers

The Court noted that section 144 of the LGA purports to state that a decision of the Minister, such as the decision to give advice to the Governor in Council recommending dismissal, cannot be appealed to the Court.

The Court referred to relevant case law and determined that the Court can only determine a matter if it involves a jurisdictional error and therefore it was necessary for the Applicant to prove that there is a jurisdictional error.

The Applicant alleged the following six grounds of review to support the claim for relief.

Ground 1 - Refusal to grant request for extension of time

This ground concerned the Respondent's refusal to grant the Applicant's request for an extension of time to respond to the notice issued by the Respondent. This ground was abandoned.

Ground 2 - Failure to take into account relevant considerations

The Applicant alleged that the Respondent failed to take into account relevant considerations and that, because the ABC Complaint was still before the Tribunal, the Respondent did not have the opportunity to form its own view about the substance of the ABC Complaint.

Despite not knowing the outcome of the Tribunal's inquiry into the ABC Complaint, the Applicant alleged that the Respondent still relied upon the ABC Complaint as a reason for recommending that the Governor in Council dismiss the Applicant. However, the Court noted that neither the Respondent nor the Governor in Council would be bound by the Tribunal's decision and that the language used by the Respondent indicated that the ABC Complaint was unproven.

Further, the Applicant alleged that it was a function of the Tribunal, not the Respondent, to determine whether the ABC Complaint amounted to misconduct. In saying this, the Applicant relied on a construction of the LGA which the Court did not accept. Instead the Court determined that where the Minister reasonably believes that a Councillor has breached the local government principles or is incapable of performing their responsibilities, the Minister may act without requiring the Tribunal to conclude the issue. Consequently, this ground of review could not be sustained.

Ground 3 - Took into account irrelevant considerations

The Applicant alleged that the Respondent took an irrelevant consideration into account and also erred by failing to make a finding about whether the substance of the ABC Complaint was founded.

The Applicant alleged that the Respondent relied on "previous inappropriate disclosures". In relying on these, the Applicant further alleged that the Respondent was engaging in "propensity reasoning" by referring to previous conduct as a way of predicting future conduct. The Court, however, determined that the principles that prohibit "propensity reasoning" do not apply to an executive decision of this kind.

Therefore, the Court held that the Respondent was entitled to consider the "previous inappropriate disclosures" when making its decision and therefore regarded this ground of review as failed.

Ground 4 - Breach of the rules of natural justice

The Applicant alleged that a breach of the rules of natural justice occurred in relation to the making of the decision as the Respondent had failed to acknowledge that the ABC Complaint was before the Tribunal and "unproved". The Court noted that the Governor in Council was well-aware that the complaint was yet to be determined by the Tribunal and it therefore could not be said that the Governor in Council did not consider those points. Therefore, this ground of review was not accepted by the Court.

Ground 5 - No evidence or material to justify the findings

The Applicant alleged that there was no evidence or other material to justify the findings that the Applicant may engage in similar conduct in the future and that the Applicant's behaviour had damaged the standing of the Council. The Court disagreed and determined that the disciplinary history of the Applicant coupled with statements made by the Applicant were sufficient evidence to support the Respondent's findings, and therefore rejected this ground of review.

Ground 6 - So unreasonable that no reasonable person could so exercise the power

The Applicant alleged that the exercise of power to dismiss the Applicant was so unreasonable that no reasonable person could so exercise the power. However, this ground was reliant on the second or third ground being upheld, and since neither of those grounds were upheld this final ground of review was also rejected.

Conclusion

As the Applicant could not substantiate any grounds of review, the application was dismissed by the Court and the Court ordered that the Applicant pay the Respondent's costs on a standard basis.