Can Political Communication Override Local Government Standards?

Our local government team discusses Kingston and Local Government Standards Panel [2025] WASAT 43.

By Michelle Todd, Senior Associate

A recent decision by the State Administrative Tribunal (SAT) has brought attention to the role and powers of Local Government Standards Panels in addressing alleged breaches of conduct by elected members, particularly where those breaches intersect with the implied constitutional freedom of political communication.

Understanding the Case

In Kingston and Local Government Standards Panel [2025] WASAT 43, the Tribunal reviewed a matter concerning alleged breaches of the Local Government (Model Code of Conduct) Regulations by Councillor Daniel Jeffery John Kingston (Cr Kingston).

Cr Kingston applied to the SAT for review of the Local Government Standards Panel’s (Panel) decision. In his amended application, Cr Kingston argued that the Panel lacked jurisdiction due to the implied constitutional freedom of political communication under the Australian Constitution. This prompted the Tribunal to consider whether it had jurisdiction to determine the matter.

The Background

Following a complaint, the Panel found that Cr Kingston had breached the Code and was asked to make a public apology and undertake the training specified in the order. Cr Kingston challenged the decision and applied to the Tribunal for review of the Decision.

In his amended application, Cr Kingston argued that the Panel lacked jurisdiction to handle the complaint because doing so infringed on the implied freedom of political communication guaranteed by the Australian Constitution. This raised the question whether the Tribunal itself could lawfully determine the matter given constitutional protections.

Summary of Submissions

Cr Kingston argued that the implied freedom of political communication limited the Panel’s jurisdiction, rendering any decision a nullity that the Tribunal must set aside. He clarified that this jurisdictional issue does not constitute a defense but concerns the Tribunal’s authority to adjudicate.

Conversely, the Attorney General of Western Australia submitted that simply invoking constitutional freedom does not automatically oust the Tribunal’s jurisdiction. The Tribunal’s review is de novo and is not constrained by the Panel’s jurisdictional findings. Whether the Panel’s decision was valid or not is not determinative of the Tribunal’s authority to review the matter.

Tribunal’s Decision on Jurisdiction

The Tribunal’s preliminary determination was that it does have jurisdiction to hear the matter. This conclusion was reached after examining:

• Whether the constitutional issue forms part of the ‘matter’ before the Tribunal,
• Whether the Tribunal would be exercising judicial power in deciding the issue,
• Whether the constitutional argument was genuinely raised and legally tenable.

Citing Hanssen Pty Ltd v Owners of Strata Plan 58161 [2024] WASCA 87, the Tribunal distinguished between substantive controversies and jurisdictional controversies, emphasizing that the ‘matter’ is the justiciable controversy independent of procedural posture. The Tribunal found the constitutional argument did not sufficiently place the matter within the High Court’s exclusive jurisdiction.

Conclusion

This case highlights the balance between upholding constitutional rights and preserving the authority of state tribunals. While the implied freedom of political communication is fundamental, it does not automatically displace the jurisdiction of tribunal.

*This information serves as a general guide and does not constitute legal advice. It is based on our research and experience at the time of publication. Please consult our knowledgeable legal team for any specific inquiries or advice relevant to your circumstances, as the content may not have been updated subsequently.

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