BOWMAN and LOCAL GOVERNMENT STANDARDS PANEL - [2024] WASAT 22

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION:   BOWMAN and LOCAL GOVERNMENT STANDARDS PANEL [2024] WASAT 22
MEMBER:   MR E CADE, MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   14 DECEMBER 2023
PUBLISHED           :   5 APRIL 2024
FILE NO/S:   CC 725 of 2023
BETWEEN:   AARON BOWMAN
Applicant
AND
LOCAL GOVERNMENT STANDARDS PANEL
Respondent
ATTORNEY GENERAL OF WESTERN AUSTRALIA
Intervenor

Catchwords:

Local Government Standards Panel - Conduct of councillor - Rules of conduct - Minor breach - Statement that a city employee is incompetent or is dishonest - Whether a local government employee is an employee who is expressly named or who through implication is capable of being identified

Legislation:

City of Swan's Meeting Procedures Local Law 2019 (WA), s 4.11(2)(b)
Interpretation Act 1984 (WA), s 18
Local Government (Administration) Regulations 1996 (WA), r 34D
Local Government (Model Code of Conduct) Regulations 2021 (WA), cl 4(1)(e), cl 5(1)(a), cl 18, cl 20, cl 20(1), cl 20(2)(a), cl 20(4), cl 20(4)(a), Div 2, Div 4
Local Government (Rules of Conduct) Regulations 2007 (WA), reg 10(3)
Local Government Act 1995 (WA), s 5.104(1), s 5.105(1)(a), s 5.106, s 5.107, s 5.107(4), s 5.110, s 5.110(2), s 5.110(2)(a), s 5.110(6), s 5.125, s 5.125(1), s 5.125(2), s 5.102A, Pt 5, Div 9
Local Government Legislation Amendment Bill 2019 (WA)
State Administrative Tribunal Act 2004 (WA), s 24, s 27, s 29(1), s 37(1), s 60(2)
State Administrative Tribunal Rules 2004 (WA), r 9(a)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	Ms E Tapsell
Intervenor	:	Ms E Tapsell

Solicitors:

Applicant	:	N/A
Respondent	:	State Solicitor's Office
Intervenor	:	State Solicitor's Office

Case(s) referred to in decision(s):

Director General of Department of Transport v McKenzie [2016] WASCA 147
Mohammadi v Bethune [2018] WASCA 98
Phillips and Local Government Standards Panel [2012] WASAT 97
Yates and Local Government Standards Panel [2011] WASAT 196
Yates and Local Government Standards Panel [2012] WASAT 59

REASONS FOR DECISION OF THE TRIBUNAL:

(These reasons were delivered orally and have been taken from the transcript. They have been edited to make necessary corrections or annotations for the purposes of correcting grammatical errors or infelicity of expression and to add relevant authorities.)

Introduction

The applicant is Councillor Bowman of the City of Swan. He was elected a council member of the City in October 2021.
Pursuant to s 5.125 of the Local Government Act 1995 (WA) (LG Act) the applicant seeks a review in the Tribunal of a finding by the Local Government Standards Panel (the Panel) that he committed a minor breach within the meaning of s 5.102A of the LG Act. He also seeks a review of the order as to sanction made by the Panel.
The Panel delivered its Finding and Reasons for Finding on 17 January 2023. The applicant was notified of the Panel's order as to sanction on or around 19 May 2023. This application was made on 22 May 2023.
The respondent is the Panel which, properly, limited itself to the production of a bundle of documents pursuant to s 24 of the State Administrative Act 2004 (WA) (SAT Act).
The Attorney General intervened in this proceeding (the intervenor) pursuant to s 37(1) of the SAT Act. In compliance with the Tribunal's orders of 20 June 2023 the intervenor provided a statement of issues, facts and contentions (intervenor's SIFC). The intervenor also acted as a contradictor to the case presented by the applicant.
On 28 September 2023 the Tribunal ordered, pursuant to s 60(2) of the SAT Act, that the review of the Panel's finding and order as to sanction are to be determined entirely on the documents.
The substantive issue in this review is whether the applicant, by making three statements at an ordinary council meeting held at the City of Swan on 6 July 2022, contravened cl 20(4)(a) of the Local Government (Model Code of Conduct) Regulations 2021 (WA) (Model Regulations). If he did so, he then committed a minor breach within the meaning of s 5.102A of the LG Act. I will refer in these reasons to the applicant's three statements as statements 5, 6 and 9.
If the applicant has committed a minor breach, then a secondary issue will arise for consideration. This issue is what sanction, if any, should be imposed on the applicant in respect of the minor breach.
For the reasons which I will now give, the correct and preferable decision is that the applicant through making the three statements did not contravene cl 20(4)(a) of the Model Regulations. That is, he did not commit a minor breach.
As the applicant did not commit a minor breach the sanction imposed on the applicant should be set aside.
For reasons which I will also give, I find that I do not have jurisdiction to consider the applicant's statement which I shall refer to as statement 4.
Finally, I observe that the complaint form that the complainant was required to use gives little helpful guidance about how to frame a complaint, and that it may be useful if the form was reviewed and improved.

The primary issues

There are three matters of controversy in this proceeding. I shall refer to these as the primary issues.
The first primary issue is whether the 'breach alleged in the complaint' is a complaint that the applicant breached both cl 20(4)(a) of the Model Regulations and cl 34D of the Local Government (Administration) Regulations1996 (Administration Regulations), or whether it is a complaint that he breached only cl 34D of the Administration Regulations.
The second primary issue is whether any of the three statements 5, 6 and 9 are statements that a city employee is incompetent or is dishonest.
The third primary issue is whether as a matter of proper construction 'a local government employee' means any employee of the City even if it is not possible to determine the name of any City employee, or, whether it is a reference only to an employee of the City who is expressly named in a statement or who through implication is capable of being identified.

Context

It is accepted by the applicant and the intervenor that an Ordinary Council Meeting (OCM) was held by the City on 6 July 2022. The main item of business at this OCM was the adoption of the City's annual budget. The council member presiding at the OCM was the Deputy Mayor Mel Congerton (DM Congerton).
The OCM was audio and video recorded. The recording was 3 hours and 35 minutes in length. A transcript of some parts of the OCM was included in the materials provided to the Tribunal.
It is accepted by the applicant that during the OCM he spoke to his proposed amendments to the budget and against the motion to adopt the budget. It is also accepted by him that at the time of the OCM he was a council member of the City and that he attended the OCM and spoke at the OCM in his capacity as a council member.
At one point in the OCM another council member raised a point of order in respect of the applicant's statement 6. However, the presiding member – who was DM Congerton - rejected the point of order.
On 1 August 2022 DM Congerton made a written complaint on Official Conduct Form 1 Complaint of Minor Breach Form (complaint form) alleging 10 'references' made by the applicant at the OCM 'imputed improper motives to the City administration that inferred maladministration in the budget process'.
As the complaint alleges a breach of a local law or the model code of conduct it is a complaint of a 'minor breach' - s 5.102A of the LG Act. Such a complaint is to be made in writing in a form approved by the Minister, it is to contain the name of the person making the complaint and the name of the person about whom the complaint is made, it is to give details of the alleged contravention and it is to be made within 6 months of the of the breach alleged in the complaint.
The form is to be sent to the nominated complaints officer for the City - s 5.107 of the LG Act. DM Congerton submitted the complaint form to the City's complaint officer who in turn forwarded it to the Panel. The Panel received the complaint form on 10 August 2022 and recorded it as complaint number 20220118.
DM Congerton's complaint was made within the time required – 6 months pursuant to s 5.107(4) of the LG Act for the making of such a complaint.
This application to the Tribunal was also made within time – 28 days as required by r 9(a) of the State Administrative Tribunal Rules 2004 (WA).
I note that what I refer to as a numbered 'statement' is referred to in some of the material as a numbered 'reference' or numbered 'comment'. Nothing turns on which of these words is used.
I also note that the Montgomery Report stated that the City on 12 May 2021 adopted a 'Code of Conduct for Councillors, Committee Members and Candidates'. This Code of Conduct is very similar to the Model Code of Conduct set out in the Model Regulations. While I agree with the Montgomery Report on this issue, there is no significance in this matter as to whether the City did or did not adopt the Code of Conduct as the relevant provisions in each are identical. I will therefore, for convenience, refer to the applicable Code of Conduct as the Model Regulations.

The Panel's findings

After considering the material before it the Panel decided that the applicant in his capacity as a council member at the OCM did make statements 1 to 3 and 5 to 10 but that it was not satisfied that he made statement 4.
While the text in the complaint form alleged a breach only of s 4.11(2)(b) of the then applicable City of Swan's Meeting Procedures Local Law 2019 (WA) (which being a local law was then an allegation of a breach of cl 34D of the Administration Regulations), the Panel considered whether each of the comments that it found the applicant did make were in breach of cl 34D of the Administration Regulations and cl 20 of the Model Regulations.
With respect to the statements that it found that the applicant did make, the Panel found that the applicant:
(a)did not commit a breach of cl 34D of the Administration Regulations;
(b)did not commit a breach of cl 20(4)(a) of the Model Regulations in respect of his statements 1, 2, 3, 7, 8 and 10; and
(c)did commit a breach of cl 20(4)(a) of the Model Regulations in respect of his statements 5, 6 and 9.

The sanction imposed by the Panel

On 19 May 2023 the Panel determined in respect of the breach by statements 5, 6 and 9 that the applicant is to be dealt with under s 5.110(6) of the LG Act. It ordered him to make a public apology in terms that it set out in its order dated 19 May 2023.

The material before the Tribunal

The applicant and the intervenor provided the following documents and submissions to the Tribunal:
(a)application for review dated 22 May 2023;
(b)applicant's undated submission with attachments;
(c)respondent's s 24 bundle dated 18 July 2023 (Bundle) which includes the Panel's Finding and Reasons for Finding dated 17 January 2023 (Panel Finding) and its Decision and Reasons for Decision dated 19 May 2023 (Panel Decision);
(d)intervener's Statement of Issues, Facts and Contentions dated 18 August 2023 (intervenor's SIFC);
(e)applicant's Statement of Issues, Facts and Contentions dated 12 September 2023 (applicant's SIFC);
(f)further submissions filed by the applicant dated 11 December 2023; and
(g)further submissions filed by the intervenor dated 12 December 2023.
The applicant's submission dated 12 September 2023 includes a Finalised Report of Complaint Findings & Recommendations commissioned by the City of Swan and written by Darren Montgomery, Principal Consultant at Mapien Workplace Strategists, dated 3 November 2022 (Montgomery report).
While the audio-visual recording of the OCM was not included in the materials provided by the parties, a hyperlink to it was set out in the complaint form.
Both the complainant and the applicant made observations about persons who were visible on the recording and who the complainant looked to at various times during the recording.
Given these observations I decided it would be appropriate for me to view the recording, and I have done so. At a direction hearing held on 24 November 2023 I notified the parties that I had done this.
In my view the recording shows the City's council chamber and is clearly a recording of an official meeting of the City conducted according to the City's Meeting Procedures Local Law.

This review

Jurisdiction to conduct this review is conferred on the Tribunal by s 5.125 of the LG Act. I will discuss the jurisdictional issues that arise in this review later in these reasons.
Section 29(1) of the SAT Act provides the Tribunal, when exercising its review jurisdiction, with the functions and discretions corresponding to those exercisable by the Panel under the LG Act.
Section 27 of the SAT Act provides that the Tribunal:
(a)is to conduct the review as a hearing de novo;
(b)is to produce the correct and preferable decision at the time of the review;
(c)may take into account additional or new information which was not available at the time of the decision under review; and
(d)is not limited to the reasons given by the Panel or to the grounds for review set out in the application.
Additionally, I have reminded myself that no party bears an onus in review proceedings in the Tribunal and that s 5.106 of the LG Act prescribes the standard of proof required for finding that a breach has occurred, which is that a finding is to be based on evidence from which it may be concluded that it is more likely than not that a breach has occurred.
Where I make a finding in these reasons my finding is made on the basis of this standard of proof.

Findings of fact

The applicant in the introduction to his SIFC said he accepted paragraphs 1 to 104 of the intervener's SIFC. Paragraphs 28 to 37 of the intervenor's SIFC sets out a chronology and a list of facts. This chronology and these facts are therefore accepted by the applicant.
Even though the applicant in his SIFC did not dispute the facts which form the background to these reasons I must nonetheless make my own findings on the facts that are relevant on this review.
After carefully considering the materials before me, I find that:
(a)the applicant was a council member on 6 July 2022;
(b)the OCM held on 6 July 2022 was a council meeting within the meaning of the Meeting Rules and cl 20(4) of the Model Regulations;
(c)the applicant attended the OCM in his capacity as a council member;
(d)the OCM was recorded and some parts of it were later transcribed; and
(e)statements 5, 6 and 9 were made by the applicant in his capacity as a council member.

First primary issue – what is the breach alleged in the complaint?

The complaint form contained the field 'What is your complaint: Select the regulation/s that have been breached by ticking the relevant box/es below':
Underneath that field were eight boxes, each of which referred in short form to a different regulation. None of the boxes in the complaint form was ticked but two did contain yellow highlighting over them. The highlighted boxes were next to cl 20 of the Model Regulations and cl 34D of the Administration Regulations. I find that these boxes were highlighted by the complainant in place of being ticked.
The complaint form also contained writing which set out the details of the complaint. The two most important details are:
(1)10 'references' that DM Congerton alleged were made by the applicant at the OCM and which 'imputed improper motives to the City administration that inferred mal-administration in the budget process'; and
(2)'The imputing of improper motive to an employee is a breach of the City of Swan's Meeting Procedures Local Law 2019 s 4.11(2)(b). It is an offcene [sic] for which the penalty is $1,000'.
Section 5.110(2)(a) of the LG Act limits the Panel, and therefore the Tribunal on review, to making findings only 'as to whether the breach alleged in the complaint occurred'.
The Panel, and therefore the Tribunal on review, can consequently only consider a breach that is alleged in the complaint form. In this case, the question to be decided is whether the breach or breaches 'alleged in the complaint' are the regulations alongside the highlighted boxes on the complaint form, or whether they are the words written on the complaint form.
The applicant in his submissions says that the breach 'alleged in the complaint' is the breach only as it is detailed in the writing on the complaint form under the heading 'What happened'.
I have looked to the headings in the complaint form. I have earlier set out in full the heading above the list of regulations. The heading which contains the writing is:
What happened? What did the council member do that allegedly contravened the regulation/s? If available, attach further evidence to support each allegation.
In my view the 'breach alleged in the complaint' is constituted by the totality of the information given by the complainant under both of the two headings. This includes the highlighting in the boxes under the heading 'What is your complaint'. The highlighting of these boxes in my view is an alternative to the use of a tick. That is, the highlighting is intended to select the box which is highlighted. I therefore find that DM Congerton in highlighting two boxes in the complaint form was selecting those boxes to indicate the regulations that he alleged the applicant breached, even though he did not place a tick into the boxes as instructed in the heading.
This finding does not by itself resolve this issue. In the writing under the heading 'What happened' DM Congerton used the word impute or a variation of it such as imputations or imputing three times. This is an adoption of the language in s 4.11(2)(b) of the Meeting Procedures Local Law but is not an adoption of the language in cl 20(4)(a) of the Model Regulations.
DM Congerton also explicitly referred to the Meeting Procedures Local Law in in his writing but made no explicit reference to the Model Regulations. What is of most importance in my view, however, is what DM Congerton said was imputed. He said this was 'maladministration' in the budget process.
In my view a complaint that a statement alleged 'mal-administration' is sufficiently broad to include an allegation of incompetence or dishonesty. That is, it is sufficiently broad to include an allegation of a breach of cl 20(4)(a) of the Model Regulations, and as that breach has also been selected in the complaint form by highlighting the box next to that regulation, I am persuaded that this too is part of the breach which is alleged in the complaint.
That is, I am not persuaded as the applicant argued, that the highlighting should be ignored, and that the complaint form alleges only a breach of cl 34D of the Administration Regulations.
I therefore resolve this first primary issue by finding that the 'breach alleged in the complaint' is an allegation that there has been a breach or breaches of both cl 34D of the Administration Regulations and cl 20(4)(a) of the Model Regulations.

Statement 4

The complaint form forwarded to the Panel included the allegation that statement 4 is:
I don't think we are fully informed.
The Panel said it:
… would have considered the alleged comment 4 to also be of concern, however, cannot see that this comment actually occurred as stated.
The Montgomery Report noted that this statement was made by the applicant at 3:07:35 of the recording of the OCM. I have listened to this part of the recording, and I heard the statement made there.
At a directions hearing on 24 November 2023 I brought this and some other matters to the attention of the applicant and the intervenor and granted leave to provide further submissions on this issue, as well as on any other matter that they considered to be relevant to this proceeding.

In his further submissions the applicant accepted that he did make statement 4 at the OCM.
I therefore find that statement 4 was in fact made by the applicant. I must now consider whether I have jurisdiction to determine whether this statement constituted a minor breach.
To that end I have had regard to s 5.110(2) of the LG Act which requires that the:
… standards panel is required to —
(a)make a finding as to whether the breach alleged in the complaint occurred[.]
Statement 4 was included in the complaint form. However, s 5.125(1) of the LG Act permits a party to apply to the Tribunal only in respect of a 'decision', and s 5.125(2) defines 'decision' to mean 'a decision to make an order under section 5.110(6)' of the LG Act.
The intervenor at [13] to [21] in its SIFC submits that as a matter of proper construction of s 5.125 of the LG Act the Tribunal does not have jurisdiction to review a decision of the Panel that the applicant did not commit a minor breach, and in its further submission it submitted that the Tribunal does not have jurisdiction to review a finding that a statement was not made. The applicant in both of his submissions agreed with the intervenor's submissions on these issues.
The intervenor referred to this Tribunal's decision in Phillips and Local Government Standards Panel [2012] WASAT 97 (Phillips), which considered an earlier formulation of s 5.125 and s 5.110 of the LG Act, as well as the explanatory memorandum to the Local Government Legislation Amendment Bill 2019 (WA) which amended those sections of the LG Act.
The effect of both of the Phillips decision and the explanatory memorandum is that there is a right of review to this Tribunal only in respect of a finding by the Panel that an applicant has committed a minor breach.
The finding by the Panel that it was not satisfied that statement 4 had been made is therefore not a decision within the meaning of s 5.110(6) of the LG Act.
As a consequence, I am only to consider whether the applicant committed a minor breach in respect of the statements which the Panel found the applicant made and which it also found constituted a minor breach. That is, I do not have jurisdiction to consider a statement which the Panel found, even if perhaps incorrectly, that the applicant did not make.
As I do not have jurisdiction to decide whether statement 4 breached either r 34D of the Administration Regulations or cl 20(4)(a) of the Model Regulations I will not consider this statement any further.
These reasons are therefore confined to considering whether the applicant's statements 5, 6 or 9 were in breach of cl 20(4)(a) of the Model Regulations.

Statements 5, 6 and 9 in the complaint form

Statement 5 in the complaint form is:
Why are staff not looking at reducing operating expenditures. If they are not looking at issues such as this, I must ask the question what are they.
Statement 6 in the complaint form is:
Service reviews are desperately needed and lacking … perhaps Executives and Managers don't want change, maybe they don't want council to become aware of those areas.
The Panel, based on the transcript of the OCM, found that this statement was in fact:
Councillors, service reviews are desperately needed and are lacking at Swan, why? Perhaps some managers and executives don't want change, maybe they don't want Councillors to be made aware of those areas that have a significant number of staff when compared to other local governments[.]
Statement 9 in the complaint form is:
Not aware of the cost increases that staff have done.
The Panel, based on the transcript of the OCM, found that this statement was in fact:
I couldn't however in my amendment identify each of these extra costs simply because it was impossible to know what increases staff had already included and what they hadn't.
Statements 6 and 9 as found by the Panel differ from the statement as it is set out in the complaint form. I have in these reasons relied upon the statements as they are found by the Panel.
The three statements are not isolated statements. They are extracts from speeches made by the applicant and they need to be considered in light of the entirety of what the applicant said during his speeches. When considering the statements I have therefore not confined myself to considering them in isolation, but I have considered them within this context.

Regulation 20(4)(A) of the Model Regulations

Part 5 Div 9 of the LG Act regulates the conduct and behaviour of council members and provides for sanctions when it is found that they have committed either minor or major breaches of the LG Act. This proceeding relates to an allegation of a minor breach of the LG Act.
Section 5.104(1) of the LG Act enables regulations to be made prescribing a code of conduct for council members that they are required to observe. Section 5.105(1)(a) of the LG Act provides that a council member commits a minor breach if he or she contravenes a rule of conduct made under s 5.104(1) of the LG Act.
The Model Regulations are a prescribed code. Clause 20(4)(a) of the Model Regulations regulates council members' interactions with local government employees. The relevant part of this regulation is:
(4)If a council member or candidate, in their capacity as a council member or candidate, is attending a council or committee meeting or other organised event (for example, a briefing or workshop), the council member or candidate must not orally, in writing or by any other means –
(a)make a statement that a local government employee is incompetent or dishonest; or
…
The elements of a minor breach pursuant to cl 20(4)(a) of the Model Regulations are:
(a)element 1: the applicant was a council member or candidate when he made the statement;
(b)element 2: the applicant made the statement when attending at a council meeting or other organised event;
(c)element 3: the applicant was acting in his capacity as a council member or candidate when he made the statement;
(d)element 4: the statement either expressly or impliedly states that a local government employee is 'incompetent' or 'dishonest'; and
(e)element 5: the statement identified or was capable of identifying 'a local government employee' or employees.
I have considered the findings of fact I have made above and which I have applied to the elements 1, 2 and 3. I am satisfied to the relevant standard that the facts as I have found them do establish these three elements of a minor breach pursuant to cl 20(4)(a) of the Model Regulations with respect to each of the statements 5, 6 and 9.

Second primary issue – are statements 5, 6 or 9 a statement that a city employee is incompetent or dishonest?

The applicant and the intervenor differ as to whether any of the statements 5, 6 and 9 is in fact a statement that any local government employee is 'incompetent' or 'dishonest'.
The applicant submits that none of these statements objectively considered makes such an assertion, and neither did he intend that his statements make such an assertion.
The intervenor submits that statements 5 and 9 make no such assertion against a City employee but that statement 6 does.
With respect to statement 5 the intervenor submits:
93Comment 5 does not appear to state expressly, or otherwise imply that a local government employee is lacking in qualification or ability. Taken on its face, comment 5 appears to question: first, the reason that a reduction of operating expenditure is not being considered, and second, what areas are otherwise considered.
94There are numerous reasons that a reduction of operating expenditure may not be considered; or that other areas are considered. It does necessarily follow that by doing so, a local government employee is lacking qualification or ability.
With respect to statement 9 the intervenor submits:
95Comment 9 does not appear to state expressly, or otherwise imply, that a local government employee is lacking in qualification or ability. Taken on its face, Comment 9 appears to question how extra costs either included or excluded within the Annual budget were presented.
96It does not necessarily follow that by the applicant not being able to identify those extra costs, as stated by the applicant, that a local government employee is lacking in qualification or ability.
The intervenor at paragraphs 98 and 99 in its SIFC submits that:
98… Comment 6, on one view, may imply or carry the innuendo of a person being not honest or disposed to lie. Relevantly, the Applicant stated "…Maybe they don't want Councillors to be made aware of those areas that have a significant number of staff when compared to other local governments".
99Taken on its face, this comment appears to imply that unnamed managers and executives may choose not to provide Councillors with certain information.
This Tribunal has previously considered the meaning of the word dishonest when considering the repealed reg 10(3) of the Local Government (Rules of Conduct) Regulations 2007 (WA) which was in very similar terms, and which is equally applicable to reg 20(4)(a) (See Yates and Local Government Standards Panel [2011] WASAT 196 (Yates) at [23]).
… The adjective 'dishonest' means 'not honest; disposed to lie, cheat or steal: a dishonest person' (The Macquarie Dictionary, page 481). 'Honest' means 'honourable in principles, intentions, and actions; upright: an honest person' and 'truthful; creditable; candid' (The Macquarie Dictionary, page 804). For a council member to say that a local government employee 'exaggerated' a costing required by a resolution of the local government and presented the pricing in order to 'stop the budget', that is in order that the local government would not proceed with the project, clearly implies that the employee is not honourable in principles, intentions and actions, is not upright, is not truthful, creditable or candid, and has lied about the real cost of doing the work and is therefore disposed to lie[.]
Yates also discussed whether a statement can assert dishonesty by implication rather than by express statement and found that it could.
After carefully considering the applicant's statements 5 and 9 I find, as the intervenor submitted, that there are reasons other than dishonesty or incompetence as to why a City employee or employees might not have provided the information to council that is referred to in these two statements.
Consequently, I find that neither of these statements can constitute a breach of cl 20(4)(a) of the Model Regulations.
The issue that then arises is whether statement 6 is a statement that a City employee is incompetent or dishonest. When considering statement 6 it is necessary to look at the entirety of the statement which is:
Councillors, service reviews are desperately needed and are lacking at Swan, why? Perhaps some managers and executives don't want to change, maybe they don't want Councillors to be made aware of those areas that have a significant number of staff when compared to other local governments, and / or are totally under resourced, maybe others are concerned with the outcomes but they are needed. I understand Business and Tourism was done pre-COVID yet we haven't implemented the findings, why not? Service reviews can lead to either a reduction in costs and / or an improved service.
While statement 6 is in the form of a qualified answer by the applicant to his own question, I find this is no more than a rhetorical technique. It is in effect a statement that the managers and executives have chosen not to conduct a service review in order to conceal information from council for their own interests.
The issue that I must then resolve is whether the applicant in stating that the managers and executives are concealing this information is stating that it was concealed by them due to incompetence or for a dishonest reason.
I find that this statement by the applicant is a statement that the managers and executives wish to conceal this information for reasons that are in their own interests rather than in the interests of the City.
In the language in Yates the statement therefore alleges that City employees have concealed information from council in furtherance of their own interests and are therefore disposed to lie. For this reason, I find that statement 6 is a statement alleging that one or more City employees are dishonest.
I therefore agree with the intervenor's submission on this point, and I disagree with the applicant. I find that statement 6 does meet the requirement of element 4, and so this statement is capable of being a breach of cl 20(4)(a) of the Model Regulations.

Third primary issue – is a 'Local Government employee' a reference only to an employee of the city who is expressly named or capable of being identified?

There is then the issue as to how element 5 is to be understood.
The intervenor's SIFC at paragraphs 51 to 78 sets out the relevant principles of statutory construction and cited Director General of Department of Transport v McKenzie[2016] WASCA 147 at [45] – [48].
I adopt the principles set out there which are well known, and I will not repeat them here other than to say 'the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute': Mohammadi v Bethune [2018] WASCA 98 at [32].
The intervenor submits at paragraph 77 of its SIFC that it is an element of a minor breach pursuant to cl 20(4)(a) of the Model Regulations that 'a particular government employee must be identified or identifiable by the statement made by the council member' (Emphasis added).
The intervenor set out detailed reasons for its submission at paras 70 to 78 of its SIFC, which includes noting that cl 20(1) defines the expression local government employee for the purpose of cl 20.
Sub-clauses 20(2)(a) to (c) use the expression in a context which prohibits certain conduct towards an individual person. That is, the expression is used in a context which demonstrates that it must relate to a specific or individual local government employee. As this is a defined expression it then must also have this meaning in cl 20(4)(a).
I therefore agree with the intervenor that the expression a local government employee in cl 20(4)(a) requires that 'a particular government employee must be identified or identifiable by the statement made by the council member'.
I would add one further point in support of this construction. In considering this issue it is useful to consider the purpose or object underlying the LG Act. This is because a construction that promotes the purpose or object of the Act is preferred to a construction that does not – section 18 of the Interpretation Act1984 (WA).
When discussing the now repealed reg 10(3) of the 2007 Regulations, which is substantially similar to cl 20(4)(a) of the Model Regulations, this Tribunal said in Yates at [20] in relation to reg 10:
20As Deputy President Judge Chaney (as his Honour then was) said in Hargreaves and Local Government Standards Panel [2008] WASAT 300 at [17], reg 10 of the Conduct Regulations:
… is headed 'Relations with local government employees'. I accept the submissions of counsel for the Attorney General of Western Australia that reg 10(3) is designed to ensure that councillors do not use their position to publicly criticise employees within their local government. It is predicated on the proposition that concerns about the performance of employees should be dealt with within the local government organisation and through proper channels, rather than aired publicly in a council or committee meeting.
Division 2 of the Model Regulations provides 'general principles to guide the behaviour of council members …'. These include principles of conduct which apply to individuals such as cl 5(1)(a) which requires council members to 'treat others with respect, courtesy and fairness…'. It also includes principles of conduct which apply to organisations, such as cl 4(1)(e), which requires that council members should 'avoid damage to the reputation of local government'.
A construction of Division 4 of the Model Regulations which permitted a council member to damage the reputation of a local government by making accusations of incompetence or dishonesty against unnamed employees would appear to be inconsistent with the purpose of the legislation. On its face, a construction of cl 20 which did not apply to employees or classes of employees who could not be identified might permit such statements to be made and such damage to be caused.
However, cl 18 of the Model Regulations prohibits the making of statements by a council member which cause damage to the reputation of a local government.
Clause 18 of the Model Regulations:
18.Securing personal advantage or disadvantaging others
(1)A council member must not make improper use of their office —
(a)…
(b)to cause detriment to the local government or any other person[.]
This Tribunal has previously decided that detriment may be caused to a local government by a statement made by a council member if the statement causes detriment to at least some of the local government's employees, even if no individual employees are named in the statement or are capable of being identified: Yates and Local Government Standards Panel [2012] WASAT 59 at [86].
This construction of the term is then not only consistent with the language of the provision in which the expression is placed, which of course is the most important consideration, but is also consistent with the purpose of the Act as this has been explained in earlier decisions of the Tribunal.
However, as there is no complaint of a breach of cl 18 of the Model Regulations in the complaint form there is no need for me to consider the clause any further in these reasons.
For the reasons just given, I find the statement the subject of a complaint alleging a breach of cl 20(4)(a) of the Model Regulations does require that the statement either identifies a local government employee by name or is capable of identifying a particular local government employee.
I must therefore now consider whether element 5 as I have set it out is made out with respect to statements 5, 6 or 9.
The intervenor submits that none of the three statements identifies or is capable of identifying a particular City employee. The applicant agrees with these submissions.
The intervenor submits that statement 5 and statement 9 in referring to 'staff' does not identify any particular employee of the City.
I have considered whether this reference to staff was an indirect reference to the Chief Executive Officer (CEO), on the basis that this person might be the City employee with ultimate responsibility for making recommendations to council members. However, I have decided that I have insufficient evidence before me about how a recommendation including a budget recommendation is made to the City council. It may well be that some other officer or even some officers collectively hold this responsibility.
Therefore, in my view, the applicant and intervenor's submissions are correct, and I find that as statements 5 and 9 do not meet the requirement in element 5, that they are not capable of being a breach of cl 20(4)(a) of the Model Regulations.
The intervenor submits that statement 6 in referring to 'executives and Managers' is not capable of identifying any particular employee of the City and so it cannot be a breach of cl 20(4)(a) of the Model Regulations.
I have considered whether the reference to 'executives' is a reference to the City's Chief Executive Officer, but I have concluded that the use of the plural 'executives' rather than the singular 'executive' means that it is not such a reference. Statement 6 fails to provide sufficient details that would make it possible to identify which of the City's managers and executives held the alleged dishonest motive.

That is, I have no information before me as to which of the City's executives and managers allegedly did not conduct a service review. I am therefore not satisfied that the statement is capable of identifying those managers or executives who the applicant said possessed a dishonest motive.
Consequently, when looking at the entirety of statement 6 I find that the reference to 'executives and managers' is not capable of identifying any particular employee or employees of the City.
Therefore, I find that statement 6 does not meet the requirement of element 5 and so it is not capable of being a breach of cl 20(4)(a) of the Model Regulations.

The Montgomery Report

I am asked by the applicant to give significant weight to the Montgomery Report. The Montgomery Report recommended that the applicant:
… is more likely than not to have committed Zero (0) breaches under the City's Code of Conduct for Councillors, Committee Members and Candidates ('the Code'), in respect to an alleged incident on 6 July 2022.
The intervenor submitted because the Montgomery Report relates to different provisions and also that it 'tends to impermissibly usurp the Tribunal's role in the analysis of the facts and their application', that the Tribunal should have little or no regard to the report.
I agree with the intervenor on this point, and I have had no regard to the recommendations of the Montgomery Report in my reasons.

Observation

I observe that the approved complaint form gives little guidance to a complainant as to the breach that he or she might wish to complain about. This is significant given the requirement in s 5.110(2) of the LG Act. It may be helpful if this form is reviewed to see if it can be improved.

Conclusion

For the reasons given above, I am able to consider in this review only whether the applicant's statements 5, 6 and 9 breached cl 20(4)(a) of the Model Regulations.
Also, for the reasons given above, I am not satisfied that it is more likely than not that the applicant in making statement 5, 6 and 9 at the OCM on 6 July 2022 committed a minor breach, being a breach of cl 20(4)(a) of the Model Regulations.
That is, for the reasons given above I find that the applicant's statements 5, 6 and 9 do not constitute a breach of cl 20(4)(a) of the Model Regulations as these do not meet all the elements of such a minor breach.
As the applicant did not commit a minor breach it follows that the decision of the Panel that he make a public apology must be set aside.

Orders

The Tribunal orders:
1.The application for review is allowed.
2.The decision of the respondent delivered on 17 January 2023 that Cr Bowman did commit a minor breach of Regulation 20(4)(a) of the Local Government (Model Code of Conduct) Regulations 2021 is set aside.
3.The decision of the respondent delivered on 19 May 2023 that Cr Bowman make a public apology is set aside.
4.The applicant may apply for their costs of the proceeding by filing with the Tribunal and giving to the intervenor and the respondent the following documents on or before 4 January 2024:
(a)a schedule of the costs claimed in sufficient detail to enable the Tribunal to fix any costs which might be awarded, together with any supporting documents upon which the applicant wishes to rely; and
(b)written submissions addressing the basis upon which it is contended costs should be awarded and the quantum of costs claimed.

5.If the applicant makes an application for costs, the intervenor and/or the respondent is to file with the Tribunal and give to the applicant written submissions opposing the application by 18 January 2024.
6.If the applicant makes an application for costs, the Tribunal will determine the application on the documents after 18 January 2024 and will fix the amount of any costs awarded in the same determination.
7.The matter is listed for delivery of oral reasons at 2.15 pm on 22 January 2024 for a duration of 30 minutes at 565 Hay Street, Perth, Western Australia. The parties may attend in person, or they may attend by telephone on a telephone number provided to the Tribunal by no later than two business days prior to this date.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MR E Cade, MEMBER

5 APRIL 2024

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION: BOWMAN and LOCAL GOVERNMENT STANDARDS PANEL [2024] WASAT 22 (S)
MEMBER:   MR E CADE, MEMBER
HEARD:   22 JANUARY 2024
DELIVERED          :   22 JANUARY 2024
PUBLISHED           :   5 APRIL 2024
FILE NO/S:   CC 725 of 2023
BETWEEN:   AARON BOWMAN
Applicant
AND
LOCAL GOVERNMENT STANDARDS PANEL
Respondent
ATTORNEY GENERAL OF WESTERN AUSTRALIA
Intervenor