Clancy & Ors v Attorney-General for the State of Queensland [1992] QSC 123

(, '.\' TRA.J.~SCRIPT OF PROCEEDINGS State Reporting Bureau, 4th F1oor, The Law Courts, George Street, BRJSBANE. 0. 4000 Tel. (07) 227.4360 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) ., SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION ;' .. \. / THOMAS J ( \.. No 464 of 1992 GLENDA MERLE CLANCY AND OTHERS and THE ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND BRISBANE .. DATE 3/4/92 JUDGMENT 1 Plaintiff Defendant -- 1 of 18 -- 030492 JUDGMENT HIS 'HONOUR: The plaintiff prosecutors seek relief in two separate proceedings~ In.substance their claimsmay be regarded as seeking the summary determination of an application for· the issue of a writ of.mandamus commanding the Attorney-General to establish a-Justice of the Peace 10 Council·under s·2.01 of the Justices of the Peace and Commissioners for Declarations Act 1991, before proceeding to exercise various powers under that Act, including the conducting of examinations, the establishing of selection•.' criteria for Justices of the Peace and the production of 20 0 manuals for the purposes of the Act. The matter is urgent as examinations are scheduled to take place next Monday. It is therefore imperative that I give my decision this Q afternoon. One of the prosecutors is an association called Queensland Justices Association Inc. (QJAI); The other is Mrs Clancy who is its president and who is a Justice of the Peace. The preamble to the Act declares that it is an Act to provide for the appointment, registration and functions of Justices of the Peace and Commissioners for Declarations and related purposes. The responsible Minister is the Attorney-General. The basis of the obligation to establish a council called the Justices of the Peace Council lies in s 2.01 of the Act. -· It states: "There is a duty to establish a Council called the Justices of the Peace Council having functions to provide advice to the Minister in relation to - (a) the operation of this Act; and 2 30 0 40 0 50 60 -- 2 of 18 -- ( ( ( \ '030492 JUDGMENT. (b) . selection criteria and procedures for selection of persons for appointment to office under this Act as justices of the peace or commissioners for declaration; and (c) 'training courses' that should be undertaken by persons appointed to office under.this Act as justices of the peace or commissioners for declarations; and (d) manuals and.other publications that should be produced for the purposes of this Act; and (e) special needs of justices of the peace situated in remote areas or within communities ofAborigines and Torres Strait Islanders." I have endeavoured to read the Act as a whole. I discern that in respect of appointments after the commencement of the Act there are to be two classes of Justices of the Peace, namely Justice of the Peace (qualified) and Justice of the Peace (Magistrates Court). (s 3.01(2)). A person will not qualify for appointment unless, "(a) the Governor in Council, upon the recommendation of the Minister, considers the person to be fit and proper; and (b) the person is of or above the age of 18 years; .and (c) if the Minister has approved a training course that the person is required to complete before being so appointed - unless the person has completed the course." ( s 3. 02). The Act apparently contemplates the possibility of the . . - period before the Minister specifies a training course as a prerequisite to appointment. (s 3.02(c)). Under s 1.04 of the Statute Law (Miscellaneous Provisions) Act 1991 a training course may be a course with or without 3 10 20 30 40 50 60 -- 3 of 18 -- ~--- ----------- -------------------------- 030492 JUDGMENT an examination or it may consist of an examination only. From the point of view of Justices· of ·the Peace holding office prior to the commencement of the Act, their office is continued under s 6.01. However., s 6.02 places the continuation'' of' their office under severe risk of what they might regard as relegation. That section provides: ."(1) If at the expiration of 5 years from the commencement of this Act, a person remains in offi9e as a justice of the peace under paragraph(a) of section 6.01, the person then ceases to hold that office and instead holds office as a j usti"ce of the peace (commissioner fordeclarations). (2) The registrar is to remove the person's name from the register as a justice of the peace and insert an entry that the person is a justice of the peace (commissioner for declarations)." If they wish to become Justices of the Peace (qualified) or JUstices of the Peace (Magistrates Court) they must surmount the obstacles of ss 3.01 and 3.02. The central issue in the ' 1 10 . 20 0 0 30 case is whether the Minister may take action of the kind Q described in s 2.01(b), (c) and (d) without first establishing a Council and/or receiving advice from it. There is an associated . question whether he may approve a training course under s 4.01 without first establishing a Council. Mr Harrison QC who appeared for the prosecutors submitted: (1) the Minister by not appointing the Justice of the Peace Council deprived himself of the advice he was supposed to rec~ive; and (2) the Minister's decision in delaying , 4 40 0 50 60 -- 4 of 18 -- '' 030492 JUDGMENT appointment of the Council has been influenced by a wholly irrelevant or extraneous consideration, namely an investigation by the Australian Securities Commission in relation to certain affairs of his client corporation. 10 The Minister is under the Administrative Arrangements (as to which judicial notice is to be taken under s 33(4) of the Acts Interpretation Act) charged with the business of ensuring that the Act is carried out. Section 2.01 plainly implies that the Minister has the power to do and execute 20 matters of the kind there de~cribed, for example, establish training courses, publish manuals, and so on. In addition to the implication of such a power, ss 3.02(a), 3.02(c) and 4.01, either impliedly or expressly, contemplate 30 action on his part in performing functions contemplated by the Act. Section 2.01, however, also refers to and contemplates the existence of the Justices of the Peace \ ) Council. I infer that the Minister must at some stage set up such a Council, but I do not infer that it must be 40 ( set up immediately or that its-existence is a condition of precedent· to the Minister's performing any of these functions. The duty to set up the Council is no doubt ultimately enforceable by mandamus, but only, I ·should 50 think, if there is a refusal, actual or constructive, to establish it. Delay'may be evidence which may in the end establish a constructive refusal, but I should think that considerably 60 5 -- 5 of 18 -- 030492 JUDGMENT ,, .. morE3 delay and perhaps evidence of other failure to perform duties would be needed than exists in -:the present case~ I have already noted Mr Harrison's submission that the delay has been influenced.by .. the circumstanc~ tpat the Minister .. · ' . -~ became aware of the investigation by the Securities . . - . Commission. The evidence confirms that this has been taken ., " . . ~ . into. account. by ~im. It.also confirms that he apparently desired to have contact with the. prosecutor in relation to the appointment of those persons who would need to be ai?poin~ed .. before the Council could be constituted. For examp~e, under ~ 2.02 ~he Ministe~ must appoint a Justice of the Peace sel~cted _by him.as a representative of Justices of the Peace. He·. is also required to appoint not more than four of the overall membership of the Council, being persons selected by him because they have "such special interest or experience as the Minister considers to be of assistance in the administration of this Act". The last ~ar~graph of the prosecutor's letter, dated 10 March 1992, suggests t,hat there was some contact between that orgc:misation and the Minister i.n this behalf. Other evidence indicates that the Minister did not wish to "rush to establish" formal training requirements. Insofar ~s the pending investigation has been raised, whilst it is not to be as~umed _that the investigation will prc;:>duce: any· loss. of credibility or: standing or expose impropriety on_the pa~t of the prosecutor association, it is a circumstance that may reason.ably justify the Minister .in 6 10 20 0 0 30 0 40 0 50 60 -- 6 of 18 -- 030492 JUDGMENT withholding appointments at the present stage or of deciding upon the wisdom of delaying the selection of appointees to the Council whilst it is ascertained whether any potential members, councillors or others, are rendered inappropriate as nominees by reason of the investigation. In this context s 2.05(b)·of the Act shows that any person convicted of an indictable offence is ·not qualified to be or continue as a member of the Council. I would therefore not hold that any irrelevant consideration has been established. At the same 10 time, I do not say that indefinite delay would be·· 20 justifiable. ·I consider that the Minister's ·attitude, as·· expressed in the letter written on his behalf on 25 March ( \ ) 1992, is not unreasonable and does not afford evidence that he has taken irrelevant considerations into account. 30 The true question is whether the Minister must set up the Council before prescribing any examinations or taking any other steps of that kind at all. On this issue Mr Harrison ( relied particularly on passages in Padfield v. Minister of Agriculture, Fisheries and Food (1966) AC 997, 1030; and 40 also upon passages in Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1985/1986) 162 CLR 24, 44. He submitted that in failing to appoint the Council the Minister proceeded to conduct examinations and produce manuals 50 without the opportunity for a·Council to give him advice and that in so doing he was: frustrating the policy and objects of the Act (as to which he referred to Lord Reid's comments in Padfield at p 1032); or thwarting and running counter to the policy and objects of the Act (as to which he relied on ' 60 7 -- 7 of 18 -- -------~- ----- 030492 Lord Reid Is comments at p 1030); or silently thwarting the intentions of the Act by ·failing to carry out. its purposes (as to which he referred to the remarks of Lord Pearce at p 1053). He'''further s\.i.bmitted, correctly I would think, that these questions must be·determined.by consideration of the subject matter, 'scope and purposes of the Act; citing the Peko-Wallsend case at' i:)p 42-44 and p 56. The submission included that the ~availability of advice from the Council to the Minister was an · essential part in the process of selection and training of Justices of the Peace. That, I think, encapsulates the main thread of the submission. Whilst the submissions may have considerable merit when viewed in the long term, they are not, in my view, a condition precedent to any action on the Minister's part. In this respect I would note Mr Gotterson QC's submission on behalf of the Minister that the applicants are by inference seeking to elevate a factor that may be a relevant consideration in exercising the discretionary power (the advice that a Council might give) to a precondition of its exercise. That, Mr Gotterson submitted, would be going too far. In summary, I do not think that the position disclosed in evidence has reached the stage of showing any refusal to act in accordance with the duties imposed by the Act. The action is premature, or more accurately, the evidence does 8 10 20 0 0 30 0 40 0 50 60 -- 8 of 18 -- 030492 JUDGMENT not establish any entitlement to the relief claimed. I would accordingly refuse the application. It may be noted that written submissions were received on the question of locus standi, but I reserved that question until it might be known whether a ·determination was necessary on that issue. In view of the opinion I have expressed on the primary issue, it is not necessary to make a determination on the locus standi point and for the ( ) purposes of the argument it may be assumed that the applicants had appropriate locus standi. ·. ) The formal orders will then be in the action, the action is ' " c ) ( \.,-) dismissed; in the proceedings for mandamus the order nisi will be discharged. 'There will be orders for costs in each matter. 9 10 20 30 40 50 60 -- 9 of 18 -- Se '1~/1;23 IN THE SUPREME COURT OF QUEENSLAND Writ No. 464 of 1992O.S.C. No. 4 of 1992 Before the Hon. Mr. Justice Thomas BETWEEN: AND: CATCHWORDS: GLENDA MERLE CLANCY & ORS THE ATTORNEY-GENERAL FOR THESTATE OF QUEENSLAND REASONS FOR JUDGMENT - J.B. THOMAS J. Delivered the 3rd day of April 1992. Plaintiff Defendant Administrative law - mandamus - whether Minister obliged to establish Counci1 before providing to estab1ish system for examinations for Justices of the Peace de1ay pending investigation of prosecution by Securities Commission whether an irre1evant consideration. Justices of the Peace and Commissioners for Dec1arations Act 1991. Counsel: Solicitors: L. Harrison Q.C., with him M. Halliday for the Applicant (Plaintiff Prosecutors). R. Gotterson Q.C., with him R.G. Atkinson for the Respondent (Defendant). Wellner Poole and Gray for the Applicant. Crown Solicitor for the Respondent. Hearing dates: 2nd and 3rd April 1992. -- 10 of 18 -- IN THE SUPREME COURT OF QUEENSLAND BETWEEN: AND: Writ No. 464 of 1992O.S.C. No. 4 of 1992 GLENDA MERLE CLANCY & ORS THE ATTORNEY-GENERAL FOR THESTATE OF QUEENSLAND REASONS FOR JUDGMENT - J.B. THOMAS J. Delivered the 3rd day of April 1992. Plaintiff Defendant The plaintiff prosecutors seek relief in two separate proceedings. In substance their claims may be regarded as seeking the summary determination of an application for the ) issue of a writ of mandamus commanding the Attorney-General to establish a Justice of the Peace Council under s. 2.01 of the Justices of the Peace and Commissioners for Declarations Act 1991, before proceeding to exercise various powers under that Act, including the conducting of examinations, the establishing of selection criteria for Justices of the Peace and the production of manuals for the purposes of the Act. The matter is urgent as examinations are scheduled to take place next Monday. It is therefore imperative that I give my decision this afternoon. One of the prosecutors is an association called Queensland Justices Association Inc. ( QJAI). The other is Mrs. Clancy who is its president and who is a Justice of the -- 11 of 18 -- I. 2 Peace. The preamble to the Act declares that it is an Act to provide for the appointment, registration and functions of Justices of the Peace and Commissioners for Declarations and related purposes. The responsible Minister is the Attorney-General. The basis of the obligation to establish a council called the Justices of the Peace Council lies in s. 2.01 of the Act. It states: "There is a duty to establish a Council called the Justices of the Peace Council having functions to provide advice to the Minister in relation to - (a) the operation of this Act; and (b) selection criteria and procedures for selection of persons for appointment to office under this Act as justices of the peace or commissioners for declaration; and (c) 'training courses' persons appointed justices of the declarations; and that should be undertaken by to office under this Act as peace or commissioners for (d) manuals and other publications that should be produced for the purposes of this Act; and (e) special needs of justices of the peace situated in remote areas or within communities of Aborigines and Torres Strait Islanders." I have endeavoured to read the Act as a whole. I discern that in respect of appointments after the commencement of the Act there are to be two classes of Justices of the Peace, namely Justice of the Peace (qualified) and Justice of the Peace (Magistrates Court) (s. 3.01(2)). A person will not qualify for appointment unless: "(a) the Governor in Council, recommendation of the Minister, person to be fit and proper; and upon the considers the (b) the person is of or above the age of 18 years; and () 0 0 () -- 12 of 18 -- C', \ ! 3 (c) if the Minister has approved a training course that the person is required to complete before being so appointed unless ·the person has completed the course." (s. 3.02) The Act apparently contemplates the possibility of the period before the Minister specifies a training course as a prerequisite to appointment (s. 3.02(c)). Under s. 1 . 0 4 of the -=S-=t=a:..;::t:;.:u:..:t=e=----=L=a::.::w_,_____,(.....M=i=-=s=c=e""l::;l::;a=n=e=o=u=s Provisions) Act 1991 a training course may be a course with or without an examination or it may consist of an examination only. From the point of view of Justices of the Peace holding office prior to the commencement of the Act, their office is continued under s. 6.01. However, s. 6.02 places the continuation of their office under severe risk of what they might regard as relegation. That section provides: "(1) If at the expiration of 5 years from the commencement of this Act, a person remains in office as a justice of the peace under paragraph (a) of section 6.01, the person then ceases to hold -that office and instead holds office as a justice of the peace (commissioner for declarations). ( 2) The registrar is to remove the person's name from the register as a justice of the peace and insert an entry that the person is a justice of the peace (commissioner for declarations)." If they wish to become Justices of the Peace (qualified) or Justices of the Peace (Magistrates Court) they must surmount the obstacles of ss. 3. 01 and 3. 02. The central issue in the case is whether the Minister may take action of the kind described in s. 2.01 (b), (c) and (d) without first establishing a Council and/or receiving advice from it. There -- 13 of 18 -- 4 is an associated question whether he may approve a training course under s. 4.01 without first establishing a Council. Mr. Harrison Q.C. who appeared for the prosecutors submitted: ( 1 ) the Minister by not appointing the Justice of the Peace Council deprived himself of the advice he was supposed to receive; and (2) the Minister's decision in delaying appointment of the Council has been influenced by a wholly irrelevant or extraneous consideration, namely an investigation by the Australian Securities Commission in relation to certain affairs of his client corporation. The Minister is under the Administrative Arrangements (as to which judicial notice is to be taken under s. 33(4) of the Acts Interpretation Act) charged with the business of ensuring that the Act is carried out. Section 2. 01 plainly implies that the Minister has the power to do and execute matters of the kind there described, for example, establish training courses, publish manuals, and so on. In addition to the implication of such a power, ss. 3.02(a), 3.02(c) and 4.01, either impliedly or expressly, contemplate action on his part in performing functions contemplated by the Act. Section 2.01, however, also refers to and contemplates the existence of the Justices of the Peace Council. I infer that the Minister must at some stage set up such a Council, but I do not infer that it must be set up immediately or that its existence is a condition of precedent () 0 0 0 -- 14 of 18 -- ) 5 to the Minister's performing any of these functions. The. duty to set up the Council is no doubt ultimately enforceable by mandamus, but only, I should think, if there is a refusal, actual or constructive, to establish it. Delay may be evidence which may in the end establish a constructive refusal, but I should think that considerably more delay and perhaps evidence of other failure to perform duties would be needed than exists in the present case. I have already noted Mr. Harrison' s submission that the delay has been influenced by the circumstance that the Minister became aware of the investigation by the Securities Commission. The evidence confirms that this has been taken into account by him. It also confirms that he apparently desired to have contact with the prosecutor in relation to the appointment of those persons who would need to be appointed before the Council could be constituted. For example, under s. 2. 02 the Minister must appoint a Justice of the Peace selected by him as a representative of Justices of the Peace. He is also required to appoint not more than four of the overall membership of the Council, being persons selected by him because they have "such special interest or experience as the Minister considers to be of assistance in the administration of this Act". The last paragraph of the prosecutor's letter, dated 10th March, 1992 suggests that there was some contact between that organisation and the Minister in this behalf. Other evidence indicates that the Minister did not wish to "rush to establish" formal training requirements. -- 15 of 18 -- I L 6 Insofar as the pending investigation has been raised, whilst it is not to be assumed that the investigation will· produce any loss of credibility or standing or expose impropriety on the part of the prosecutor association, it is a circumstance that may reasonably justify the Minister in withholding appointments at the present stage or of deciding upon the wisdom of delaying the selection of appointees to the Council whilst it is ascertained whether any potential members, councillors or others, are rendered inappropriate as nominees by reason of the . investigation. In this context 0 s. 2.05{b) of the Act shows that any person convicted of an indictable offence is not qualified to be or continue as a 0 member of the Council . I would therefore not hold that any irrelevant consideration has been established. At the same time, I do not say that indefinite delay would be justifiable. I consider that the Minister's attitude, as expressed in the letter written on his behalf on 25th March, 1992 is not unreasonable and does not afford evidence that he has taken irrelevant considerations into account. 0 The true question is whether the Minister must set up the c=) Council before prescribing any examinations or taking any other steps of that kind at all. On this issue Mr. Harrison relied particularly on passages in Padfield v. Minister of Agriculture, Fisheries and Food (1966) A.C. 997, 1030; and also upon passages in Minister for Aboriginal Affairs v. Peko-Wallsend Ltd. {1985/1986) 162 C.L.R. 24, 44. He submitted that in failing to appoint the Council the Minister proceeded to conduct examinations and produce manuals without -- 16 of 18 -- ) 7 the opportunity for a Council to give him advice and that in so doing he was: frustrating the policy and objects of the Act (as to which he referred to Lord Reid's comments in Padfield at p. 1032); or thwarting and running counter to the policy and objects of the Act (as to which he relied on Lord Reid's comments at p. 1030); or silently thwarting the intentions of the Act by failing to carry out its purposes (as to which he referred to the remarks of Lord Pearce at p. 1053). He further submitted, correctly I would think, that these questions must be determined by consideration of the subject matter, scope and purposes of the Act, citing the Peko-Wallsend case at pp. 42-44 and p. 56. The submission included that the availability of advice from the Council to the Minister was an essential part in the process of selection and training of Justices of the Peace. That, I think, encapsulates the main thread of the submission. Whilst the submissions may have considerable merit when viewed in the long term, they are not, in my view, a condition precedent to any action on the Minister' s part. In this respect I would note Mr. Gotterson Q.C.'s submission on behalf of the Minister that the applicants are by inference seeking to elevate a factor that may be a relevant consideration in exercising the discretionary power (the advice that a Council might give) to a precondition of its exercise. That, Mr. Gotterson submitted, would be going too far. In summary, I do not think that the position disclosed in evidence has reached the stage of showing any refusal to act -- 17 of 18 -- 8 in accordance with the duties imposed by the Act. is premature, or more accurately, the evidence establish any entitlement to the relief claimed. accordingly refuse the application. The action does not I would It may be noted that written submissions were received on the question of locus standi, but I reserved that question until it might be known whether a determination was necessary on that issue. In view of the opinion I have expressed on the primary issue, it is not necessary to make a determination on the locus standi point and for the purposes of the argument it may be assumed that the applicants had appropriate locus standi. The formal orders will then be in the action, the action is dismissed; in the proceedings for mandamus the order nisi will be discharged. There will be orders for costs in each matter. I • .. 0 () 0 0 -- 18 of 18 --