2015-03-12 Ordinary Meeting Agenda

ORDINARY MEETING AGENDA                                                              12 MARCH 2015


On 8 January 2015, the CEO wrote to the Minister seeking a Statement of Reasons pursuant to
the Judicial Review Act. This was on the basis that the original decision of the Minister did not
contain any details of why the Minister made his decision on each of the five issues. The State
Government went into caretaker mode during the election period.

On 4 February 2015, the Minister provided a Statement of Reasons. Given the significant amount
of public funds at stake, the CEO briefed barristers to give advice on the Council’s prospects of
challenging the decision of the Minister. Briefed were Mr Mark Hinson QC (one of Queensland’s
leading barristers on Judicial Review) and Mr Stephen Fynes-Clinton (a leading barrister on local
government law).

Their advice was received on 5 March 2015. All Councillors have been provided with a copy of
that advice.

In a nutshell, the advice was that we should not pursue an action in the Supreme Court as our
prospects of successfully arguing to overturn the decision of the Minister on a matter of law (as
distinct from the merits of the decision) are not good.

The reasons include the following:
    The Regulation did not prescribe or fetter how the Minister could apply his discretion in
     making his decision. The way the Regulation was framed would seem to imply that the
     Minister could apply political or policy considerations rather than just technical
     considerations;
    A Court review under Judicial Review is focused on the lawfulness of the decision, not the
     merits of the decision. We may well have good prospects if a court could look at the merits
     of the decision (the facts) but that is not within its jurisdiction; and
    A Court would have to be convinced that the Minister has clearly exceeded any constraints
     that are contained or implied in the regulation. The QCs advice is that given the legal
     issues, this would be very difficult to achieve given that there were no constraints contained
     or implied in the Regulation.

Perhaps the summary of the relevant issues by Stephen Fynes-Clinton best outline the key
issues:

“The view which we have come to, not without some debate, but now reflected in the advice as
our final view, is that we would have little prospect of persuading the Supreme Court to read
anything in to the Regulation that was sufficiently detailed or prescriptive to require the Minister to
go behind the competing views expressed to him, as distinct from choosing one or the other of
the views presented.”

“It is a matter of asking how far the Minister was (impliedly) constrained by the objects and
purposes of the Regulation so as to found a proposition that what he decided exceeded those
constraints. In the end, there was not enough in the Regulation to give us a basis upon which to
advise with any confidence that a Court would recognise constraints sufficient to establish that
the Minister had so exceeded his limits so as to require him to go back and do it again.”

 “At the risk of repetition, it is not about the merits of Noosa’s position. It is about the limits of
judicial review of a discretionary decision about a matter concerning public finances when the
legislation is effectively silent on any detail as to what the Minister is allowed or not allowed to
do.”

On the basis of that advice, there is no point in pursuing the matter further. While we may have
good arguments based on the merits of the issues that were in dispute, that is not a matter
capable of being reviewed under the law.


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