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.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] WASAT 22
Decision Date: 5 APRIL 2024

CaseChat Overview and Summary

In the case of Bowman and Local Government Standards Panel, the applicant, a council member, was accused of making improper statements about city employees during an Ordinary Council Meeting. Deputy Mayor Mel Congerton lodged a complaint against the applicant, alleging that his statements during the meeting breached the Local Government Act and the Model Code of Conduct. The Local Government Standards Panel was tasked with determining whether the applicant's statements constituted a breach of the rules of conduct. The key legal issues the Panel needed to address included whether the complaint was about a breach of specific regulations, whether the statements in question were about the incompetence or dishonesty of city employees, and the scope of the term "local government employee" in the context of the regulations.

The Panel examined the nature of the complaint and whether it referred to breaches of both the Model Regulations and the Local Government (Administration) Regulations, or just the latter. It was determined that the complaint pertained to a breach of only the Administration Regulations. The Panel then considered whether statements 5, 6, and 9 made by the applicant were allegations of incompetence or dishonesty regarding city employees. Finally, the Panel had to interpret whether "a local government employee" referred to any employee of the City, regardless of whether their identity was known, or if it was limited to employees who were explicitly named or could be identified through implication. The Panel concluded that the applicant's statements did not constitute a breach of the rules of conduct as they did not impute improper motives to city employees or infer maladministration.

The Local Government Standards Panel found that the complaint did not specify a breach of the Model Regulations but rather only the Administration Regulations. It was determined that the statements made by the applicant were not allegations of incompetence or dishonesty about city employees. Furthermore, the term "local government employee" was interpreted to include any employee of the City, even if their identity was not explicitly stated. Based on these findings, the Panel concluded that the applicant's conduct did not breach the rules of conduct. Consequently, the complaint against the applicant was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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. 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.