Supreme Court finds that a Councillor had not engaged in misconduct in refusing to leave the Council chambers

In brief

The case of Johnston v Brisbane City Council & Ors [2019] QSC 130 concerned an application by a local government councillor (Councillor) of the Brisbane City Council (Council) to the Supreme Court (Court) seeking judicial review of a decision of the Councillor Conduct Review Panel (CCRP) in which the CCRP found that the Councillor had engaged in "misconduct" within the meaning of section 178(3)(v) of the City of Brisbane Act 2010 (COBA) and ordered that the Councillor pay to the CCRP an amount equal to the monetary value of 50 penalty units.

The Councillor had initially contended that the Judicial Review Act 1991 (JRA) applied to the application, but subsequently contended that the Court's inherent jurisdiction and powers enabled the Court to make orders having the same practical effect as orders which could be made under the JRA. 

The Court found in favour of the Councillor and held that the CCRP had no jurisdiction to make its finding. The Court found that the power the CCRP sought to rely upon, being under Chapter 6, Part 2 of the COBA, could not be enlivened unless there was a failure to comply with a direction made by the Chairperson of the Council (Chairperson) in the due exercise of the Chairperson's power, which had not occurred in this instance.

The grounds of the application

The Councillor filed an application for a statutory order of review of the CCRP's decision on the grounds that the decision was made without jurisdiction, not authorised by the enactment under which it was purported to be made and contrary to law. The Councillor submitted that the decision exceeded the CCRP's jurisdiction for the following reasons:

1. by virtue of section 178(2) of the COBA, the empowering legislature that creates the CCRP did not apply, with the result that the CCRP had no jurisdiction in respect of the conduct of councillors at a meeting of the Council except for a councillor's failure to comply with a direction to leave made by the Chairperson of the meeting; and

2. the Chairperson's purported direction to the Councillor to leave was not made in accordance with any power of the Chairperson to direct the Councillor to leave.

The Councillor alternatively submitted that the CCRP failed to exercise its jurisdiction on the basis that it failed to inquire into the presence of a jurisdictional fact, namely whether the Councillor had failed to comply with a direction of the Chairperson to leave the meeting.

Background

On 22 June 2017, the Councillor had been in attendance at a Council meeting regarding funding for neighbourhood plans and development assessment. During the Council meeting, the Chairperson directed the Councillor to leave the meeting on a number of occasions following an exchange between the Chairperson and the Councillor in which the Chairperson suspended the Councillor from service of the Council for eight days. The Councillor refused to leave the Council chambers. Ultimately, the Chairperson adjourned the meeting and called on the Council representative to remove the Councillor from the chamber with the police being called to assist. 

On 11 July 2017, a complaint was made by the Chairperson to the CCRP alleging that the Councillor had engaged in "misconduct" under section 178(3)(v) of the COBA by refusing to comply with a direction made by the Chairperson to leave a meeting of the Council.

The CCRP ultimately determined that the complaint was proven and that the Councillor had engaged in "misconduct" under section 178(3)(v) of the COBA. In considering the Councillor's complaint history and disciplinary action previously taken by the CCRP, the CCRP ordered the Councillor to pay the Council an amount of not more than the monetary value of 50 penalty units which was calculated in a tax invoice to equal the sum of $6,307.50.

The Councillor appealed the decision to the Court.

Was there a lawful or valid direction?

To determine whether the CCRP had jurisdiction to reach their decision, the Court firstly considered whether the Chairperson had made a lawful or valid direction to the Councillor when ordering the Councillor to leave the Council chambers. 

The Councillor submitted that upon the proper construction of section 178(2) of the COBA, the CCRP did not have jurisdiction to make its finding, unless the Chairperson had made a valid or lawful direction for the Councillor to leave. Relevantly, section 178(2) of the COBA provides as follows:

"However, this division does not apply to the conduct of councillors at a meeting of the council or its committees, other than a failure of a councillor to comply with a direction to leave a meeting of the council or its committees made by the chairperson of the meeting."

The Councillor argued that the Chairperson had failed to comply with the preconditions which gave rise to lawful authority to make a direction. As such, the Councillor submitted that there had been no duly made or valid direction to invoke the jurisdiction of section 178 of the COBA and therefore, the CCRP had erred in its finding.

The Court agreed with the Councillor and held that a chairperson in a council meeting cannot have unfettered powers to direct councillors. The Court found that the term "direction" under sections 178(2) and 178(3)(v) of the COBA must have a statutory source or else a chairperson's whim or gesture could amount to a direction which consequently may result in misconduct and disciplinary action if there was a failure to comply. The Court therefore held that the interpretation of the term "direction" could not be so wide, and needed scope and definition which could only be derived from the procedures and powers given under the COBA and the Meetings Local Law 2001 (MLL). 

In considering whether the direction given by the Chairperson was made under any power, the Court firstly considered the power conferred by section 186A of the COBA. Relevantly, section 186A of the COBA states certain orders that a chairperson may make if disorderly conduct occurs in a meeting. The Court found that although it had no doubt that the Chairperson was aware of the powers under section 186A of the COBA, the direction of the Chairperson was not a valid direction in the context of the COBA as the orders and preconditions under the provision were not made or satisfied. The Court also found that although it was clear that the Chairperson was purporting to act under the MLL, in giving the Councillor a direction to leave, the preconditions were not met to invoke the power conferred under the provision which rendered the direction invalid. 

Did the CCRP have jurisdiction to make its finding? 

The Councillor submitted that a jurisdictional error had occurred as there was no failure by the Councillor to comply with a relevant direction to leave the meeting and therefore the decision of the CCRP fell outside of the scope of Chapter 6, Part 2, Division 6 of the COBA and the CCRP exceeded its role and jurisdiction prescribed under section 178 of the COBA.

The Councillor additionally submitted that as the CCRP's decision, and the complaint that prompted the decision, related to the Councillor's conduct at a Council meeting, the CCRP did not have jurisdiction to deal with the complaint and had acted beyond its jurisdiction in making its decision.

The Court agreed with the Councillor and held that the legislature only intended to confer a very narrow jurisdiction on the CCRP in relation to Council meetings. The Court found that the CCRP had no jurisdiction to hear or decide a complaint about a councillor's conduct at a Council meeting, other than a failure of a councillor to comply with a direction to leave a meeting made by a chairperson. The Court emphasised that the requirement of a direction made by a chairperson to leave a meeting anchors the jurisdiction of the CCRP under section 178(2) of the COBA. 

The Court therefore held that a councillor can only commit "misconduct" as intended under section 178(3)(v) of the COBA, if the councillor fails to comply with a valid direction to leave a meeting made by a chairperson. The Court found that as the Chairperson had not made a valid or duly made direction to leave the meeting, the CCRP had no jurisdiction to review the Councillor's conduct in the meeting and to reach its findings. 

Conclusion

The Court found that the Chairperson had not made a proper direction, in law, for the Councillor to leave the meeting, and therefore as there was no failure by the Councillor to comply with a relevant direction, the decision of the CCRP fell outside of the scope of the CCRP's jurisdiction. The Court set aside the decision of the CCRP.