| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : LOCAL GOVERNMENT ACT 1995 (WA) CITATION : BRADLEY and LOCAL GOVERNMENT STANDARDS PANEL [2012] WASAT 44 MEMBER : MR P McNAB (MEMBER) HEARD : 12 MARCH 2010 DELIVERED : 16 NOVEMBER 2010 PUBLISHED : 7 MARCH 2012 FILE NO/S : DR 429 of 2009 BETWEEN : RODNEY BRADLEY Applicant
AND
LOCAL GOVERNMENT STANDARDS PANEL
Respondent
ATTORNEY-GENERAL FOR WESTERN AUSTRALIA
Intervener
Catchwords: Local government Regulation of councillors Local Government Standards Panel Censured councillor Conflict of interest Councillor did not declare he was a witness in criminal proceeding brought by local government against resident Councillor a member of prosecuting local government Whether
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councillor giving evidence on behalf of resident in criminal proceedings is a declarable interest Extent to which rules of conduct for councillors restrict political free speech Review allowed Censure set aside Words and phrases: 'disclosure of interest' 'political free speech' Legislation: Local Government (Rules of Conduct) Regulations 2007 (WA), reg 11
Local Government Act 1995 (WA), s 2.10(a), s 5.105(1) Result: Application for review allowed
Decision of the respondent set aside and original complaint to Panel dismissed Category: B
Representation: Counsel:
Applicant : Self-represented
Respondent : Mr DE Leigh
Intervener : Mr DE Leigh
Solicitors:
Applicant : N/A
Respondent : State Solicitor's Office
Intervener : State Solicitor's Office
Case(s) referred to in decision(s):
Greene v Gold Coast City Council [2008] QSC 25
Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 Councillor Rodney Bradley is an elected Councillor in the Town of Cambridge. 2 In 2008, he gave evidence for the defence in a prosecution action brought by the Town of Cambridge against a constituent ratepayer of his, a Mr Charles Saliba, concerning Mr Saliba's alleged liability in respect of the unfinished construction of a house on certain land in the Town, being land owned by Mr Saliba. 3 During Mr Saliba's trial, Councillor Bradley was not crossexamined by the Town's prosecuting solicitor. 4 The Tribunal found that, with respect to this incident, Councillor Bradley had no personal or other interest in the matter, but was motivated solely by what he saw was an injustice against a ratepayer. 5 Councillor Bradley applied to the Tribunal for a review of a proposed public censure imposed upon him by the Local Government Standards Panel. The censure followed a complaint lodged by a fellow Council member of an alleged 'minor breach' by Councillor Bradley of the standards applicable to elected officials. It was alleged that, in a subsequent debate in Council, directly related to Mr Saliba's prosecution, Councillor Bradley had failed to declare a relevant interest, namely, his participation in the trial. However, the Town of Cambridge's Chief Executive Officer was aware of Councillor Bradley's participation and spoke during the debate, defending Council's position in the prosecution action. 6 The Tribunal upheld the review finding that, in the circumstances, the relevant standard was not breached and that no public censure was warranted. 7 The Tribunal discussed the difficult role that elected local officials undertook, and their right to exercise, within limits, a freedom of 'political speech' particularly when representing their constituents. Although there may be consequences concerning the manner of communication, the expression of 'wrong-headed' opinions (if that is what they were) and related conduct, did not mean that, in the circumstances that the Tribunal was concerned with, such opinions or conduct manifested a conflict of interest requiring a relevant declaration of interest. (Page 4)
8 What follows is a formally revised and edited version of the reasons delivered orally by the Tribunal.
Introduction 9 On 6 November 2009 Councillor Rodney Bradley commenced a review of a decision of the Local Government Standards Panel (Panel), expressed in a Minute of Order SP 47 of 2008 arising from a decision of the Panel made on 30 September 2009. 10 In short, a complaint of a 'minor breach' within the meaning of s 5.105(1) of the Local Government Act 1995 (WA) (LG Act) was upheld against Councillor Bradley by the Panel. The essential issue was whether a failure to declare that Councillor Bradley had been a witness for the defence in a criminal proceeding brought by the Town of Cambridge (Town or Council) should have been declared at a subsequent ordinary council meeting of the Town where a directly related issue was discussed. 11 Councillor Bradley was at all material times, and is, a councillor with the Town in the Coast Ward. The original complainant was a fellow councillor. The Panel's decision arose out of an ordinary council meeting held on 16 December 2008. 12 The Panel's position has been helpfully and fairly defended in these proceedings by Mr DE Leigh on the instructions of the Attorney General for Western Australia; Councillor Bradley appeared in person.
The application for review 13 The Panel ordered the public censure of Councillor Bradley. This censure was to be published in the following terms: 14 Unfortunately, much of Councillor Bradley's original application to the Tribunal challenging the findings of the Panel was intemperate in language, some of which was stuck out by Senior Member Parry in this Tribunal after a directions hearing; Councillor Bradley's application also contained elements that were irrelevant to the review process. (Page 5)
15 However, Councillor Bradley has always maintained as his central defence that, in effect, the motivation for his actions which led to the proposed public censure was solely his perception of his duty to a ratepayer constituent. 16 Because there was published during the reservation of the matter after the first hearing in this Tribunal another censure by the Panel in similar terms in respect of a similar and related matter, there were delays occasioned in investigating both the consequences of that event and some public comments on the matter by Councillor Bradley. 17 It is unnecessary to consider those matters further having regard to the decision reached today by the Tribunal.
The legislation 18 Both the Panel and on review this Tribunal have applied the Local Government (Rules of Conduct) Regulations 2007 (WA) (Conduct Regulations); in particular, the definition of 'interest' in reg 11(1): '[I]nterest' means an interest that could, or could reasonably be perceived to, adversely affect the impartiality of the person having the interest and includes an interest arising from kinship, friendship or membership of an association. 19 The regulatory mechanisms for the declaration of such conflicts of interest are set out in the provisions of reg 11(2) to reg 11(6).
The facts 20 None of the material facts in this matter are in dispute. There is no dispute that Councillor Bradley was a member of the Council on 16 December 2008 and attended and spoke at an ordinary council meeting on that day in that capacity. Nor is it in issue that Councillor Bradley gave evidence for a ratepayer constituent (meaning an elector in the Town) at a prosecution action in the Perth Magistrates Court on 23 July 2008, being a prosecution brought by the Town, and that the failure to declare an alleged interest related to the same transaction namely, an unfinished house partly built by a Mr Charles Saliba. 21 The Panel's summary of findings at para 5(1)(b) as to the nature of Councillor Bradley's interest at the ordinary council meeting was as follows: (Page 6)
… that he had appeared as a witness for Mr Charles Carmelo Saliba (the owner of 67 Ruislip Street, West Leederville) ('Mr Saliba') at the Perth Magistrates Court hearing of the Town of Cambridge v Owner of 67 Ruislip Street on 23 July 2008, and defended Mr Saliba against the Town's prosecution action in relation to the unfinished house and other matters at 67 Ruislip Street, West Leederville. The Panel's other relevant finding, at para 5(1)(a) was that: The purpose of [the ordinary council meeting] was for Council to consider whether any further action was necessary to require the completion of the construction of the house at 67 Ruislip Street, West Leederville ('the unfinished house'), in accordance with the respective building licences [issued by the Town], associated approved plans and specifications; and to bring the construction of the unfinished house into compliance with the Town's outstanding Local Government Act Notice, as varied by the State Administrative Tribunal. 22 As indicated, none of these facts are in contention.
The applicant's case 23 The original complaint by Councillor David Berry appeared to confuse other, separate proceedings in this Tribunal (between Mr Saliba, and the Town) with criminal proceedings involving the Town and Mr Saliba in the Perth Magistrates Court. Although Councillor Bradley submitted that this point also meant that his review should succeed, that is on an alleged jurisdictional point arising from such confusion, there is, in the Tribunal's view, with respect to Councillor Bradley, no point of substance to this, as the real cause of complaint, as identified in the reasons above, was correctly identified by the Panel, and Councillor Bradley had, in any case, the opportunity to be heard on the issue by the Panel. 24 Before the Panel, Councillor Bradley submitted that he had 'a serious interest in the Town not being held responsible for harm to a ratepayer'. He claimed that his was also an interest in common with other ratepayers in terms of 'fair treatment' by the Town, and the avoidance of subsequent damages claims by any ratepayer. In short, Councillor Bradley maintained that at all material times he was performing his duty of representing a constituent in a matter of public administration. He also maintained that he had no private interest in the matter whatever other than, as he saw it, righting a wrong. (Page 7)
25 As an elected Councillor, Councillor Bradley is charged under the LG Act with, amongst other roles, 'represent[ing] the interests of electors, ratepayers and residents of the district': see s 2.10(a) of the LG Act.
The context of reg 11 26 Most States and Territories have, broadly speaking, statutory provisions similar to reg 11 aimed at managing nonpecuniary conflicts of interests in local government: see, for example, Halsbury's Laws of Australia, at [265645] to [265675]. 27 In the Encyclopaedic Australian Legal Dictionary (Butterworths, 2010), 'conflict of interest' is defined as: (1) A situation where a person has a personal interest in a matter the subject of a decision or duty of the person. (2) A situation where the interest, principal [sic], right, advantage or position of one individual or business entity, whether directly or in being represented by another, comes into discord, challenge, dispute or harm with those of another. 28 The NSW Independent Commission Against Corruption's Conflicts of interest and local government: discussion paper (ICAC, 1991: Sydney) (ICAC Discussion Paper) said, at para 3.1: A conflict of interest arises when council members and employees, in doing their jobs, are influenced or seen to be influenced by their personal interests. 29 However, as the ICAC Discussion Paper acknowledged, at para 3.7: … the mere fact that someone has a personal interest in a matter before a council is not necessarily wrong. It is how the conflict is dealt with which can give rise to problems. 30 Conflicts of interest are discussed in the local government context in New South Wales in Local Government Planning and Environment NSW Vol C (Butterworths loose-leaf). Relevant to this case, the learned commentators added these observations, at [420,185]: A 'conflict of interest' does not necessarily exist simply because a person has both a public duty and a private interest in relation to a particular matter before a council meeting or a meeting of the council. For example, the existence of a non-pecuniary interest such as heritage conservation may be completely aligned with the person's public duty as that person sees it. Indeed, the interest may be the very reason, or one of the reasons, why the person was elected to the council or appointed to the committee. (Page 8)
31 The Model Code of Conduct for Local Councils in NSW (NSW Department of Local Government, June 2008) (Model Code) includes the following, at 7.10: What is a non-pecuniary conflict of interests? Non-pecuniary interests are private or personal interests that the council official has that do not amount to a pecuniary interest as defined in the Act. These commonly arise out of family, or personal relationships, or involvement in sporting, social or other cultural groups and associations and may include an interest of a financial nature. 32 Importantly, the Model Code at 7.12 includes the following proviso: The political views of a councillor do not constitute a private interest. 33 The Tribunal has also had regard to 7.3 and 7.14 7.16 of the Model Code. Of course, in that State local government is a more obvious branch of party politics. But nevertheless, the point can be well made that the pursuit of political matters which, in my view, can include or overlap with constituency matters is not necessarily to be equated with a relevantly private interest that requires declaration or other action.
Application of these principles to reg 11 34 In the Tribunal's view, no breach of reg 11 was occasioned by Councillor Bradley's failure to declare an alleged interest as his interest was not of a kind to which reg 11 is directed in the particular circumstances of this case. 35 First, there is no evidence (and any suggestion to this effect is, in any case, denied by Councillor Bradley) that Councillor Bradley had any personal association, friendship or interest in Mr Saliba's matter and, further, no relationship beyond that of representing a constituent. If there is evidence of personal association, none of that has been placed before me, and Councillor Bradley, properly, was not crossexamined by Mr Leigh on any such suggestion. 36 Second, the Tribunal accepts that Councillor Bradley was assisting a constituent with a perceived or alleged injustice. That was his sole motivation during the prosecution and thereafter. His motivation was effectively unchallenged before this Tribunal and should be accepted. 37 Third, Councillor Bradley gave evidence in public, in a court of law. The nature of this evidence, upon which there was no objection or crossexamination by the prosecutor representing the Town in the (Page 9)
Magistrates Court, was, it appears, to put Mr Saliba's situation into its proper context and, in effect, to criticise the regulatory processes of the Town, including the bringing of the proceedings. As I read the evidence, it is very much directed to putting a constituent's case forward and is consistent with what is discussed above. 38 Finally, the Chief Executive Officer (CEO) of the Town, and others actually present, knew of these facts because it was, apart from anything else, and at least in the case of the CEO, officially reported to him in writing by the Town's solicitors as a material matter in the report on the processes relating to the conviction of Mr Saliba. The CEO spoke immediately after Councillor Bradley at the December council meeting and strongly refuted Councillor Bradley's claims about aspects of the Town's evidence given in the proceedings. 39 The Tribunal acknowledges that the complainant, Councillor Berry, may have been somewhat disquieted to have found out, presumably subsequently, Councillor Bradley's precise involvement in Mr Saliba's trial. But that concern is not relevant to the point, and does not detract from Councillor Bradley's motivation. 40 Mr Saliba has had, speaking very generally, an unhappy record in some of the courts of this state and indeed in this Tribunal as regards local government regulatory matters. Such matters are a matter of public record. It might turn out that in the end there is no objective evidence to support Mr Saliba's exculpatory position. However, it is wholly immaterial whether there has been in fact such an injustice or, for that matter, whether Councillor Bradley used intemperate language to make his point in Council. Such language or passion in itself does not mean, generally speaking, that the interest thereby ceases to be a 'constituency matter'. 41 However, such allegations might have other consequences for the maker of them; it appears in fact that they have had such consequences here for Councillor Bradley, at least as regards the Panel's jurisdiction. Thus, the manner in which such a non-declarable interest is advocated might lead the speaker into trouble. 42 It might have been thought here unwise to make these assertions; it might have been informative to tell all of the Council that Councillor Bradley attended court and in what capacity. However, all of these matters are ultimately not to the point. Here we are only concerned with an allegation of undeclared conflict or bias (apparent or real) (Page 10)
clouding the exercise of public duty, and the mechanism imposed by law for ameliorating that conflict. 43 In the Tribunal's view, the intervention by Councillor Bradley in the debate before Council, with the motivation that the Tribunal has found that he held, and in the other circumstances outlined above, is not an interest of the kind to which reg 11 is directed. It follows that, with respect, the Tribunal does not accept Mr Leigh's contentions that at some point what may have started out as a 'constituency matter' became a personal crusade for Councillor Bradley, making it a declarable interest. Such a characterisation is inconsistent with the sole motivation that the Tribunal has found in respect of Councillor Bradley's actions, both as regards his court appearance and his subsequent intervention in the debate in Council. 44 Moreover, the application of the State's approach would create an artificial and problematic dichotomy of interest line to be drawn from time to time, one that might be practically difficult to administer, opening councillors up to charges similar to those faced by Councillor Bradley here, and often based, one assumes, upon the intensity of the supposed manifestation of the alleged personal interest. 45 Local councillors do a critical, necessary and difficult job; they attempt to represent local opinion which is not always an easy task. They have little assistance in the way of staff and independent research facilities and they are not particularly wellremunerated (at least as ordinary suburban or rural councillors). They are political creatures in the best sense of that description who are primarily, in this capacity at least, accountable to their local electors and community. They do not always get things right, as some of the planning cases in this Tribunal testify. But they are not to be criticised for attempting to represent their constituency and community interests to the best of their abilities. Their job should not be made even more difficult by the imposition of unworkable rules that, in effect, limit what they may say when they are undertaking these critical functions. 46 Political free speech is an important part of the fabric of the body politic of democracies and is widely recognised either expressly or as an underpinning value in many areas of public law, including local government: see Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 559 560 and 571 572; Greene v Gold Coast City Council [2008] QSC 25. The duties imposed upon councillors by reg 11 must be read in the light of these practical and (Page 11)
political realities. To artificially and unrealistically inflate these obligations might tend to have a 'chilling effect' on local political speech and communication, a result which should not be attributed to Parliament. 47 To be sure, councillors have an overriding duty to put public interest before private interest and to express themselves appropriately, but that does not mean that they cannot express an opinion, however wrongheaded, without first making a difficult judgment often on the run as to whether a constituency or political issue has transmogrified into a declarable interest. The Tribunal should, in this case, err on the side of political 'free speech'.
Conclusion and orders 48 For these reasons, the application for review will be allowed and the decision of the respondent set aside. 49 The orders of the Tribunal are as follows: |