Leave to appeal - Question of law - Alleged unconstitutionality of State law - Local government - Procedural fairness

Judiciary Act 1903 (Cth), s 78B

Local Government Act 1995 (WA), s 5.118(1)

State Administrative Tribunal Act 2004 (WA), s 13, s 105(1), s 105(2)

Chan v Harris (No 3) [2011] FCA 341

Glennan v Commissioner of Taxation [2003] HCA 31; (2003) 77 ALJR 1195

Glew v The Shire of Greenough [2006] WASCA 260

Shaw v Jim McGinty in his capacity as Attorney General [2006] WASCA 231

1 REASONS OF THE COURT: On 13 April 2012, the court heard an application for leave to appeal an order of the State Administrative Tribunal (the Tribunal) by which the Tribunal ordered that the appellant was suspended from holding office as a Council member for a period of six months, commencing on 17 December 2010. The order was made pursuant to a reference to the Tribunal under s 5.118(1) of the Local Government Act 1995 (WA) and in pursuance of the Tribunal's jurisdiction under s 13 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The period of suspension the subject of the order evidently expired approximately 10 months ago.

2 The application was brought under s 105(1) of the SAT Act. Any appeal could only be brought on a question of law: s 105(2) of the SAT Act.

3 The appellant alleged, in effect, that the Tribunal erred in law in failing to hold that it lacked jurisdiction on the basis that the Local Government Act, and the SAT Act, were unconstitutional.

4 The court refused leave to appeal and dismissed the appeal on 13 April 2012 and stated that reasons would shortly follow. These are the court's reasons.

5 The appellant's proposed grounds of appeal, read with the notice of appeal, asserted, in effect, that:

(a) as the 1988 referendum for approval of legislation to amend the Commonwealth Constitution to include provisions for local government was rejected, the Parliament of Western Australia had no power to enact legislation dealing with local governments;

(b) to the extent that s 52 or s 53 of the Constitution Act 1889 (WA) (the WA Constitution Act) purported to authorise the Parliament of Western Australia to enact legislation dealing with local governments, they were invalid under s 109 of the Commonwealth Constitution by virtue of their inconsistency with Commonwealth law; and

(c) the Local Government Act and the SAT Act were invalid on the basis that they infringed s 73(2) of the WA Constitution Act.

6 Each of the alleged grounds was entirely untenable. The first two lacked any merit essentially for the reasons given by this court in Glew v The Shire of Greenough [2006] WASCA 260 [7] - [14], [22] - [25], [27]. The failure of the referendum referred to is irrelevant, and there is no inconsistent Commonwealth legislation. This court's decision in Glew v Shire of Greenough was the subject of an application for special leave to the High Court. The application was dismissed: Glew v Shire of Greenough [2007] HCA Trans 520. Gummow J, speaking for the coram, said:

[The Local] court rejected the applicants' argument that the Local Government Act 1995 (WA) is unconstitutional, as is s 52 of the Constitution Act 1889 (WA). The District Court of Western Australia dismissed the applicants' appeal. In turn the Court of Appeal of the Supreme Court of Western Australia dismissed a further appeal as 'entirely lacking in legal merit'. We agree.

7 The third ground also lacked merit. As the Tribunal correctly found, the terms of s 73(2) of the WA Constitution Act self-evidently have no relevance or application to the Local Government Act or the SAT Act.

8 As a peripheral issue, s 78B Judiciary Act 1903 (Cth) provides that a case involving constitutional issues cannot proceed until the court is satisfied that notice of the matter has been given to the Attorneys-General, including the Attorney-General of the Commonwealth. On the appellant's evidence, a notice under s 78B of the Judiciary Act did not appear to have been issued in this case. However, as a matter of statutory construction, s 78B does not have the effect of rendering 'invalid' any proceeding in which a notice should have been, but was not, given: Glennan v Commissioner of Taxation [2003] HCA 31; (2003) 77 ALJR 1195 [13]; Glew v The Shire of Greenough [28]. Also, s 78B is not intended to apply where there is merely an allegation that a constitutional point arises, if the point alleged is unarguable, frivolous or vexatious: Glew v Shire of Greenough [28]; Shaw v Jim McGinty in his capacity as Attorney General [2006] WASCA 231 [42]; Chan v Harris (No 3) [2011] FCA 341 [15] - [18]. The alleged constitutional points raised by the appellant were unarguable, frivolous and vexatious.

9 Finally, it should be noted that although there was no mention of the point in his proposed grounds of appeal, the appellant in his 'submissions' (in the form of an affidavit) complained that the Tribunal had denied him procedural fairness in its determination of the substantive issues in the application before it. The bases for the complaint appeared to be that the respondent in the present application, ie, the applicant before the Tribunal, was represented by a legal practitioner who acted in a 'very partial vein' in making submissions on penalty; that possible witnesses 'may or may not have been giving hand signals to [the Tribunal]'; and that there had been 'wilful concealment' by the respondent of a 'crucial document'.

10 In relation to the 'wilful concealment' claim, the appellant handed up a document which was received and marked for identification. It purported to be a Deed of Settlement between two parties, the Shire of Shark Bay and a former Chief Executive Officer of the Shire, concerning the CEO's alleged unfair dismissal as an employee of the Shire. The appellant said it was significant in that it contained a provision concerning mutual releases between the Shire and CEO. The document had no relevance. The proceedings before the Tribunal concerned a failure by the appellant to comply with an order of the Local Government Standards Panel with respect to allegations which the appellant had himself made about the former CEO of the Shire of Shark Bay. The appellant was not a party to the deed, nor mentioned in it. The deed did not purport to release the appellant either in general terms, or in particular in relation to claims which formed the subject matter of the proceedings before the Tribunal.

11 Moreover, we were not persuaded, on the evidence, of any 'concealment' of the document as alleged by the appellant. Indeed, the parties to the deed had, by its terms, bound themselves to confidentiality.

12 In any event, none of the matters referred to in [9] above justified a complaint of procedural unfairness on the part of the Tribunal. Moreover, the appellant deliberately absented himself from a hearing of the substantive issues, despite being encouraged by the Tribunal to remain and participate in the hearing. At the hearing before the Tribunal, the Tribunal dealt with the appellant's constitutional arguments as, in effect, preliminary issues. The appellant then indicated that he would leave the hearing before the matter was dealt with on the substantive merits. The Tribunal confirmed that it intended to hear the matter on the merits, and the judge said that he would 'urge' the appellant to participate in the proceedings. The following exchange ensued:

I've noted your objection and ruled on it. That objection remains a live issue; it can be dealt with in a Court of Appeal. So it's a matter for you, but I think it's unfortunate if, in the circumstances, you don't avail yourself of the opportunity to be heard in relation to the substantive issues that are before me this morning.

HARGREAVES, MR: No, sir. You are more aware of the implications of habeas corpus. I have pointed out, several times now, that the State Administrative Tribunal has no validity, according the Western Australian Constitution, neither in terms of the Commonwealth of Australia Constitution. So this, to me, is an invalid gathering; it's not even a court. So I'll take my leave, and appeal accordingly. Thank you, sir.

13 The Tribunal did not deny the appellant a fair hearing. There was no arguable denial of natural justice.

14 For these reasons, leave to appeal was refused and the appeal was dismissed.