CHIEF EXECUTIVE OFFICER, DEPARTMENT OF LOCAL GOVERNMENT AND COMMUNITIES and SCAFFIDI
[2017] WASAT 67
•9 MAY 2017
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION: CHIEF EXECUTIVE OFFICER, DEPARTMENT OF LOCAL GOVERNMENT AND COMMUNITIES and SCAFFIDI [2017] WASAT 67
MEMBER: JUSTICE J C CURTHOYS (PRESIDENT)
MS C WALLACE (SENIOR MEMBER)
MS L EDDY (MEMBER)
HEARD: 7 AND 8 FEBRUARY 2017
DELIVERED : 9 MAY 2017
FILE NO/S: DR 212 of 2016
BETWEEN: CHIEF EXECUTIVE OFFICER, DEPARTMENT OF LOCAL GOVERNMENT AND COMMUNITIES
Applicant
AND
LISA MICHELLE SCAFFIDI
Respondent
Catchwords:
Gift - Accommodation - Contribution to travel - Serious breaches - Consideration
Legislation:
Corruption and Crime Commission Act 2003 (WA), s 4
Criminal Code Act Compilation Act 1913 (WA), Chapter 5, s 24, s 36
Interpretation Act 1984 (WA), s 10(b), s 18, s 19
Local Government (Administration) Regulations 1996 (WA), reg 23, reg 25, reg 26
Local Government (Rules of Conduct) Regulations 2007 (WA), reg 11, reg 12
Local Government Act 1989 (Victoria), s 87(1)
Local Government Act 1995 (WA), s 1.3, 1.4, s 4.88(2), s 4.89(2), s 5.65(2), s 5.72, s 5.74, s 5.76, s 5.78, s 5.82, s 5.83, s 5.83(1), s 5.83(2), s 5.88, s 5.88(1), s 5.88(2), s 5.94, s 5.98, s 5.102, s 5.105, s 5.106, s 5.113, s 5.116, s 5.117,
Local Government Amendment Act 2009 (WA), s 28
Local Government Bill 1995 (WA)
Members of Parliament (Financial Interest) Act 1992 (WA)
s 5.121, Div 1, Pt 8, Div 6, Pt 5
State Administrative Tribunal Act 2004 (WA), s 32(b)Result:
Application allowed
Respondent committed 45 serious breaches of the Local Government Act 1995 (WA)
Summary of Tribunal's decision:
This decision concerned the conduct of the Lord Mayor of the City of Perth, in relation to appropriately registering gifts and travel.
Following the publication of a report on the Lord Mayor's conduct by the Crime and Corruption Commission in October 2015, the Chief Executive Officer, Department of Local Government and Communities, filed an application with the Tribunal on 7 July 2016. These proceedings were before the Tribunal pursuant to s 5.116(2) of the Local Government Act 1995 (WA).
The primary issues for the Tribunal to determine were whether the Lord Mayor failed to comply with her obligation to:
a) lodge an 'annual return' (within the meaning of s 5.76 of the LG Act) for the period of 12 months ending on 30 June 2009 in the prescribed form by 31 August 2009; and
b) disclose in her annual returns for the return periods between (and including) 2008/2009 and 2013/2014 all 'gifts' (within the meaning of s 5.82 of the LG Act) and 'contributions to travel' (within the meaning of s 5.83 of the LG Act) received by the Lord Mayor in those return periods.
The decision turned almost entirely on the statutory construction of the relevant provisions of the Local Government Act 1995 (WA).
The Tribunal found that the Lord Mayor failed to comply with her obligation to lodge an annual return and to disclose the relevant gifts and contributions to travel and committed 45 serious breaches of her reporting obligations under the Local Government Act 1995 (WA).
Category: B
Representation:
Counsel:
Applicant: C. Thatcher & D.E. Leigh
Respondent: S. Penglis & M. Tannock
Solicitors:
Applicant: State Solicitor's Office
Respondent: Squire Patton Boggs
Case(s) referred to in decision(s):
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Briginshaw v Briginshaw (1938) 60 CLR 336
City of Kwinana v Lamont [2014] WASCA 112
Coast Ward Ratepayers Association (Inc) v Town of Cambridge [2016] WASC 239
Director General of Department of Transport v McKenzie [2016] WASCA 147
Eclipse Resources Pty Ltd v The State of Western Australia [No 4] [2016] WASC 62
Geraldton Fisherman's Co-operative Ltd v Munro [1963] WAR 129
Rush v WA Amateur Football League (Inc) [2007] WASCA 190
Saunderson v Watson [2007] VSC 497
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
1This decision concerns the conduct of the Lord Mayor of the City of Perth, Lisa Michelle Scaffidi, in relation to appropriately registering gifts and travel. There is very little dispute about the facts. The decision turns almost entirely on the statutory construction of the relevant provisions of the Local Government Act 1995 (WA) (LG Act).
Procedural history
2The investigation of Ms Scaffidi's conduct has a long history. The original Crime and Corruption Commission (CCC) Report was published in October 2015.
3A report was then undertaken by the Chief Executive Officer, Department of Local Government and Communities (CEO) following the publication of the CCC Report.
4The application to this Tribunal under the LG Act was filed on 7 July 2016.
5The parties agreed that the matter should be mediated and consent orders were made by the Tribunal on 22 July 2016 for mediation. The parties' available dates were in late September 2016. The Tribunal was in a position to provide mediation at an earlier date had the parties been available. The mediation was listed for 27 September 2016 but the parties requested an adjournment. The mediation ultimately took place over two days, on 17 and 24 November 2016. The matter was unable to be resolved at mediation and was referred back to a directions hearing to program for final hearing.
6On 28 November 2016, the Tribunal listed the matter for hearing on 6 February 2017.
7On 20 December 2016, the CEO filed its statement of issues, facts and contentions (CSIFC).
8Ms Scaffidi filed an amended statement of issues facts and contentions (SSIFC) on 2 February 2017.
9The parties are to be commended for their agreed statement of facts, which substantially reduced the hearing time that this matter might otherwise have taken. In so doing the parties enabled the Tribunal to concentrate on the legal issues in contention between the parties.
The issues before the Tribunal
10The parties agreed that the primary issues for the Tribunal to determine are whether Ms Scaffidi failed to comply with her obligation to:
a)lodge an 'annual return' (within the meaning of s 5.76 of the LG Act) for the period of 12 months ending on 30 June 2009 in the prescribed form by 31 August 2009; and
b)disclose in her annual returns for the return periods between (and including) 2008/2009 and 2013/2014 all 'gifts' (within the meaning of s 5.82 of the LG Act) and 'contributions to travel' (within the meaning of s 5.83 of the LG Act) received by Ms Scaffidi in those return periods.
(AF filed 24 January 2017 paragraph 1)
11There was no dispute between the parties that Ms Scaffidi failed to lodge her annual return by 31 August 2009, that is, there is no dispute as to issue (a).
12The parties also agreed that in order to determine the primary issue set out in paragraph (b) above, the Tribunal must also resolve the following subissues:
1)In respect of the allegations that Ms Scaffidi failed to disclose gifts she had received:
i)which person actually received any financial benefit alleged to have been conferred on Ms Scaffidi (and in particular whether any such benefit was conferred on Ms Scaffidi or the City of Perth) and which person, if any, provided consideration for that benefit;
ii)more broadly, whether any of the gifts alleged to have been received by Ms Scaffidi were 'gifts' within the definition in s 5.82(4) of the LG Act, or otherwise 'gifts' that Ms Scaffidi was not obliged to disclose by virtue of the operation of s 5.82(2) of the LG Act; and
iii)in particular, whether, in respect of those alleged gifts for which Ms Scaffidi contends consideration was provided, that consideration is properly characterised as being in 'money or money's worth' and the adequacy of the alleged consideration;
and
2)In respect of the allegations that Ms Scaffidi failed to disclose contributions to travel:
i)what accommodation is 'incidental to a journey', and thus properly characterised as a 'contribution to travel' (within the meaning of s 5.83 of the LG Act). The parties are agreed that it is only where accommodation is used in the course of a journey from one place to another (such as during a stopover) that it is incidental to a journey; and
[Note:The parties' agreement does not bind the Tribunal]
ii)more broadly, whether any of the contributions to travel alleged to have been received by Ms Scaffidi were a 'contribution to travel' within the definition in s 5.83 of the LG Act, or otherwise a 'contribution to travel' that Ms Scaffidi was not obliged to disclose by virtue of the operation of s 5.83(2) of LG Act.
(AF paragraph 2)
13The parties further agreed that the Tribunal will need to determine whether a failure to disclose multiple gifts and contributions to travel received in a single 'return period' (within the meaning of s 5.105(3) of the LG Act) is properly characterised as a single 'serious breach' (within the meaning of s 5.102 of the LG Act), or as a series of such breaches. The parties agree that, if any such failure is properly characterised as a single serious breach, then the number of gifts and contributions that were not disclosed are relevant to the seriousness of that breach (AF paragraph 3).
14The parties further agreed that, given that the definition of 'serious breach' in s 5.105(3) of the LG Act provides that such a breach will be committed if the relevant person has committed particular offences, the Tribunal will need to determine whether Ms Scaffidi can rely on Chapter V of the Criminal Code Compilation Act 1913 (WA) (Criminal Code) to show that she did not commit those offences.
15The parties agreed that the provisions of Chapter V of the Criminal Code do so apply (AF paragraph 4).
Onus
16In determining disciplinary matters, it is always important to consider the onus. Section 5.116(2) of the LG Act provides that the CEO may make an allegation to the State Administrative Tribunal. Section 5.117 of the LG Act provides that if, on an allegation under s 5.116(2), the State Administrative Tribunal finds that a person committed a serious breach it make one or more of the orders specified in s 5.117(1) of the LG Act. The orders available are punitive in nature, and in fact s 5.117 is headed 'Punishment for serious breach'. Section 5.106 of the LG Act provides that:
A finding that a breach has occurred is to be based on evidence from which it may be concluded that it is more likely that the breach occurred than that it did not occur.
17In that context, the Tribunal is satisfied that the onus for establishing the allegation(s), or more precisely the factual matters that make up the allegations, must be on the applicant.
18In accordance with s 5.106 of the LG Act, the applicable standard is the same as the ordinary civil standard. In applying the standard in these proceedings the Tribunal considers that it is appropriate to have regard to the so called 'Briginshaw principle', whereby the decisionmaker is required to consider the seriousness of the allegations, any inherent unlikelihood of the occurrence and the gravity of the consequences flowing from a finding in considering the degree of persuasion necessary: Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. The Tribunal considers it is necessary to feel an actual persuasion of the occurrence or existence of the relevant facts before being satisfied that the allegation has been made out.
The evidence before the Tribunal
19The evidence before the Tribunal was comprised of:
a)a statement of agreed facts (AF);
b)the Department of Local Government and Communities' bundle of documents (Exhibit A);
c)a written statement (Exhibit B) and oral evidence from Francis Richard Edwards, the Chief Executive Officer of the City of Perth from 29 April 2002 to 21 September 2012;
d)a City of Perth memorandum dated 17 December 2008 from the Councillor Instruction Manual (Exhibit C); and
e)a written statement (Exhibit D) and oral evidence from Ms Scaffidi.
Mr Edwards' evidence
20Mr Edwards was the Chief Executive Officer of the City of Perth (not to be confused with the applicant CEO). He had daily contact with Ms Scaffidi.
21Ultimately, given the very substantial agreement as to the facts, Mr Edwards' evidence was essentially irrelevant. For example, Mr Edwards gave evidence as to his belief as to whether, for example, money from the Council of Capital City Lord Mayors (CCC Lord Mayors), were gifts or contributions from a third party (T:22; 07.02.17). His belief is irrelevant to a determination of whether Ms Scaffidi had breached the LG Act as alleged.
The agreed facts in relation to the documents
22In a number of instances, the agreed facts comprise summaries of, or excerpts from, documents filed with the Tribunal in the course of these proceedings. The parties relied on the contents of those documents for their full force and effect, and did not seek to limit recourse to those documents during the course of the proceedings (AF paragraph 2.1).
Interpretation Act
23Section 18 of the Interpretation Act 1984 (WA) provides:
In the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object.
24Section 19 of the Interpretation Act provides:
(1)Subject to subsection (3), in the interpretation of a provision of a written law, if any material not forming part of the written law is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material
(a)to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law; or
(b)to determine the meaning of the provision when
(i)the provision is ambiguous or obscure; or
(ii)the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law leads to a result that is manifestly absurd or is unreasonable.
(2)Without limiting the generality of subsection (1), the material that may be considered in accordance with that subsection in the interpretation of a provision of a written law includes
(a)all matters not forming part of the written law that are set out in the document containing the text of the written law as printed by the Government Printer; and
(b)any relevant report of a Royal Commission, Law Reform Commission, committee of inquiry or other similar body that was laid before either House of Parliament before the time when the provision was enacted; and
(c)any relevant report of a committee of Parliament or of either House of Parliament that was made to Parliament or that House of Parliament before the time when the provision was enacted; and
(d)…; and
(e)any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House of Parliament by a Minister before the time when the provision was enacted; and
(f)the speech made to a House of Parliament by a Minister on the occasion of the moving of a motion that the Bill containing the provision be read a second time in that House; and
(g)…; and
(h)any relevant material in any official record of proceedings in either House of Parliament.
(3)In determining whether consideration should be given to any material in accordance with subsection (1), or in considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to
(a)the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law; and
(b)the need to avoid prolonging legal or other proceedings without compensating advantage.
Principles of statutory construction
25In Director General of Department of Transport v McKenzie [2016] WASCA 147 at [45][48], Buss P stated:
In Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, French CJ, Hayne, Crennan, Bell and Gageler JJ observed:
'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text' (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46 [47]). So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself [39].
See also Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 [31] (French CJ, Gummow, Hayne, Crennan & Kiefel JJ); Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 [22] (French CJ, Hayne, Kiefel, Gageler & Keane JJ).
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. The statutory text is the surest guide to Parliament's intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy. See Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] (McHugh, Gummow, Kirby & Hayne JJ); Alcan(NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27 [47] (Hayne, Heydon, Crennan & Kiefel JJ).
The context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed. See CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ).
The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions. See Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [26] (French CJ & Hayne J). The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose. See Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 [21] (Gleeson CJ, Hayne, Callinan & Heydon JJ).
26A particularly useful exposition of the principles of statutory construction is contained in the judgment of Beech J in Eclipse Resources Pty Ltd v The State of Western Australia [No 4] [2016] WASC 62:
538The proper construction of a statute is 'reached by the application of rules of interpretation accepted by all arms of government in the system of representative democracy'; Zheng v Cai [2009] HCA 52; (2009) 239 CLR 446 [28].
539In the process of statutory construction, primary attention must be directed to the text of the statutory provisions; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47]; Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 [39].
540In City of Kwinana v Lamont [2014] WASCA 112 at [47] the court said:
The High Court of Australia has iterated, and reiterated, that the starting point and ending point for the task of statutory construction is the statutory text. The context, including legislative history and extrinsic materials, has utility only to the extent that it assists in fixing the meaning of the statutory text: Thiess v Collector of Customs [2014] HCA 12 [22] (the court); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 87 ALJR 98, 107 [39] (the court); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 46 - 47 [47] (Hayne, Heydon, Crennan & Kiefel JJ). The duty of a court is to give the words of the statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, but not universally, that meaning will correspond with the grammatical meaning of the provision: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [78].
541The language of the words of the statute must be interpreted having regard to their context. Alcan [4], [47]; CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408. Part of that context is the purpose of the legislation insofar as it may be discerned from what the legislation says, as distinct from any assumption about the desired or desirable reach or operation of relevant provisions; Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; (2012) 248 CLR 378 [26]. A statutory purpose may appear from an express statement in the relevant statute, by inference from its terms and by appropriate reference to extrinsic materials. The purpose of the statute is not something which exists outside the statute. It resides in its text and structure, albeit it may identified by reference to rules of construction; Lacey v Attorney General (Qld) [2011] HCA 10; (2011) 242 CLR 573 [44].
542The court must be mindful of the danger of inferring and giving weight to a broad legislative purpose and failing to give the text the detailed attention it deserves; Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138 [6]; Alcan [51].
543When the purpose of legislation is established, a construction that would promote that purpose shall be preferred to a construction that would not do so; Interpretation Act, s 18. Section 18 of the Interpretation Act 1984 (WA) is not directed to a construction which better achieves the object of an Act. Rather, the section assists when there is a choice between a construction that would promote the underlying object and one which would not; Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249, 262. Nevertheless, as the principles set out above demonstrate, quite apart from the Interpretation Act, at common law the court has regard to the evident purpose and context in its wide sense when construing legislation.
544The consequences of competing constructions, and any inconvenience or improbability of result arising from a construction, can be taken into account in choosing between constructional choices that are open on the language of the statute; CIC Insurance (408); Network 10 Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; (2004) 218 CLR 273 [11]; Mijatovlc v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149 [153] - [154]. However, there are limits on the weight to be given to consequences; Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297, 320 - 321; Wilderness Society of WA (Inc) v Minister for Environment [2013] WASC 307; (2013) 45 WAR 471 [213].
545A provision of a statute must be construed consistently with the language and purpose of all of the provisions of the statute; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69].
546Section 19 of the Interpretation Act identifies extrinsic material which a court may consider in order to determine the meaning of a provision in a written law, or to determine the meaning of a provision where there is ambiguity or obscurity in its ordinary meaning. That material includes any explanatory memorandum relating to the bill and the Second Reading Speech. However, secondary materials must not be substituted for the text of the legislation; K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501 [53]. The words of the statute, not non-statutory words seeking to explain them, are of paramount significance; Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529 [22].
547A definition is not to be construed in isolation from the operative provision(s) in which the definition is used. Rather, the operative provision is to be read by inserting the definition into the provision, and the provision then construed; Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 [84], [103]; Epic Energy (Pilbara Pipeline) Pty Ltd v Commissioner of State Revenue [2011] WASCA 228; (2011) 43 WAR 186 [62], [150], [218].
548Statutory texts enacted by the same legislature are to be construed so far as possible to operate in harmony and not in conflict; Commissioner of Police v Eaton [2013] HCA 2; (2013) 252 CLR 1 [98].
549Where two or more statutory enactments comprise an overlapping legislative scheme, the enactments should be construed accordingly, and the court should endeavour to produce a rational, sensible, efficient and just operation, in preference to an inefficient, conflicting, or unjust operation; Trajkoski v Director of Public Prosecution (WA) [2010] WASCA 119; (2010)41 WAR 105
27The fact that a statute creates a criminal offence is a relevant contextual consideration in its construction. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [57]) the High Court stated:
Given the basis on which this appeal is to be allowed, it is not necessary to deal with these arguments beyond the making of two points. First, tax statutes do not form a class of their own to which different rules of construction apply; they are to be construed by application of the settled principles referred to above. Secondly, the fact that a statute is a taxing Act, or contains penal provisions, is part of the context and is therefore relevant to the task of construing the Act in accordance with those settled principles. Whether or when 'rules' of the kind considered in Anderson and Waugh v Kippen may be relied upon need not be decided.
28In Coast Ward Ratepayers Association (Inc) v Town of Cambridge [2016] WASC 239 at [127], Pritchard J stated:
Fifthly, the construction of s 5.67 for which the Association contends, and the process by which such a construction would need to be arrived at, has even less to commend it given that s 5.67 is a penal provision. While the old rule that statutes creating offences should be strictly construed no longer reflects the modern approach to statutory construction, the fact that a statute creates a criminal offence is nevertheless a relevant contextual consideration in its construction. In Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202, McHugh J cautioned against construing a penal provision so as to extend the scope of criminal liability, especially if the intention of the legislature was not clear:
A court should not disregard clear words and interpret a legislative provision so as to extend the scope of criminal liability even if it thinks that, by inadvertence, the legislature has failed to deal with a matter. That is so even if the court thinks that the legislature would probably have dealt with the matter if it had been drawn to the legislature's attention. Jordan CJ put the relevant principle succinctly in delivering the judgment of the Full Court of the New South Wales Supreme Court in Ex parte Fitzgerald; Re Gordon:
If conduct of a particular kind stands outside the language of a penal section, the fact that a Court takes the view that it is through inadvertence of the Legislature that it has not been included does not authorise it to assume to remedy the omission by giving the penal provision a wider scope than its language admits.
Still less should a court ignore the clear words of a provision so as to give it a meaning that would or might make it easier to convict an accused if the intention of the legislature is at best a matter of contestable opinion, as it is in this case.
The relevant legislation
29Section 1.3 of the LG Act is headed 'Content and intent'.
30Section 1.3(1)(d) states that the LG Act provides a 'framework for the administration and financial management of local governments and for the scrutiny of their affairs'.
31Section 1.3(2) of the LG Act relevantly provides:
This Act is intended to result in
(a)better decision making by local governments; and
…
(c)greater accountability of local governments to their communities[.]
32The notes to Part 5 of the LG Act provided that that Part deals with:
…
(d)the disclosure of financial interests in matters affecting local government decisions and in returns; …
33Division 6 of Part 5 of the LG Act is entitled 'Disclosure of financial interests'. Subdivision 2 of Div 6 is entitled 'Disclosure of financial interests in returns'.
34The term 'relevant person' is defined in s 5.74 of the LG Act to mean 'a person who is a council member or a designated employee'. The term 'member' in relation to the council of a local government is defined in s 1.4 of the LG Act to include an elector mayor of the local government.
35It was not in issue that Ms Scaffidi was, at all relevant times, a 'relevant person'.
36Section 5.76 which appears in Part 5, Div 6 subdivision 2 of the LG Act provided:
(1)Each year, a relevant person other than the CEO must lodge with the CEO an annual return in the prescribed form by 31 August of that year.
(2)Each year, a CEO must lodge with the mayor or president an annual return in the prescribed form by 31 August of that year.
Penalty applicable to subsections (1) and (2): $10 000 or imprisonment for 2 years.
37Section 5.78 of the LG Act relevantly provided:
(1)A relevant person must comply with the requirements of sections 5.79, 5.80, 5.81, 5.82, 5.83, 5.84, 5.85 and 5.86 in relation to the disclosure of information in a return.
Penalty: $10 000 or imprisonment for 2 years.
(2)Nothing in this Subdivision requires a relevant person to
(a)include in a return any information which has been disclosed in a previous return made by the relevant person; or
(b)disclose the actual value, amount or extent of any asset, income, interest, gift, contribution, debt or disposition referred to in sub-section 5.79, 5.80, 5.81, 5.84, 5.85 or 5.86.
38Section 5.78 of the LG Act was subsequently amended by No 2 of 2016, s 34 to insert new reporting provisions in relation to gifts and travel and to create separate offences for a failure to comply with those provisions.
39Section 5.82 of the LG Act relevantly provided:
(1)A relevant person is to disclose in an annual return
(a)the description and the amount of each gift received by the person at any time during the return period; and
(b)the name and address of the person who made each gift to which paragraph (a) applies.
(2)Nothing in this Subdivision requires a relevant person to disclose in a return a gift received by the person if
(a)the amount of the gift did not exceed the prescribed amount unless
(i)the gift was one of 2 or more gifts made by one person at any time during the return period; and
(ii)the sum of those 2 or more gifts exceeded the prescribed amount;
or
(b)the donor was a relative of the person.
(3)For the purposes of this section, the amount of a gift comprising property, other than money, or the conferral of a financial benefit is to be treated as being an amount equal to the value of the property or the financial benefit at the time the gift was made.
(4)In this section
gift means any disposition of property, or the conferral of any other financial benefit, made by one person in favour of another otherwise than by will (whether with or without an instrument in writing), without consideration in money or money's worth passing from the person in whose favour it is made to the other, or with such consideration so passing if the consideration is not fully adequate, but does not include any financial or other contribution to travel.
40Section 5.82 of the LG Act was subsequently amended by No 2 of 2016, s 35.
41The prescribed amount was $200 (see reg 25 of the Local Government (Administration) Regulations 1996 (WA) (LG Regulations)).
42Section 5.83 of the LG Act provided:
(1)A relevant person is to disclose in an annual return
(a)the description and the amount of each financial or other contribution that has been made to any travel undertaken by the person at any time during the return period; and
(b)the name and address of the person who made each contribution to which paragraph (a) applies.
(2)Nothing in this Subdivision requires a relevant person to disclose in a return a financial or other contribution to any such travel undertaken by a person if
(a)the contribution was made from Commonwealth, State or local government funds; or
(b)the contribution was made by a relative of the person; or
(c)the contribution was made in the ordinary course of an occupation of the person which is not related to his or her duties as a council member or employee; or
(d)the amount of the contribution did not exceed the prescribed amount unless
(i)the contribution was one of 2 or more contributions made by one person at any time during the return period; and
(ii)the sum of those 2 or more contributions exceeded the prescribed amount;
or
(e)the contribution was made by a political party of which the person was a member and the travel was undertaken for the purpose of political activity of the party, or to enable the person to represent the party.
(3)For the purposes of subsection (2)(d) the amount of a contribution (other than a financial contribution) is to be treated as being an amount equal to the value of the contribution at the time the contribution was made.
(4)In this section
political party means a body or organization, whether incorporated or unincorporated, having as one of its objects or activities the promotion of the election to the Parliament of the Commonwealth or of the State of a candidate or candidates endorsed by it or by a body or organization of which it forms part; and
travel includes accommodation incidental to a journey.
43The prescribed amount was $200 (see reg 26 of the LG Regulations).
44Section 5.83 was subsequently amended by No 2 of 2016, s 36.
45Section 5.88 of the LG Act provides:
(1)A CEO is to keep a register of financial interests.
(2)The register is to contain
(a)the returns lodged under section 5.75 and 5.76; and
(b)a record of the disclosures made under sections 5.65, 5.70 and 5.71,
and be in the form that is prescribed (if any).
(3)As soon as is practicable after a person ceases to be a person who is required under section 5.75 or 5.76 to lodge a return, the CEO is to remove from the register all returns relating to that person.
(4)Returns lodged under section 5.75 or 5.76 and removed from the register under subsection (3) are to be kept by the CEO for a period of at least 5 years after the person who lodged the return ceased to be a council member or designated employee.
46The prescribed form is Form 3 pursuant to reg 23 of the LG Regulations.
47Section 5.94 of the LG Act provided:
A person can attend the office of a local government during office hours and, unless it would be contrary to section 5.95, inspect, free of charge, in the form or medium in which it is held by the local government and whether or not it is current at the time of inspection
(a)any code of conduct;
(aa)any regulations prescribing rules of conduct of council members referred to in section 5.104;
(ab)any register of complaints referred to in section 5.121;
(b)any register of financial interests;
(c)any annual report;
(d)any annual budget;
(e)any schedule of fees and charges;
(f)any plan for the future of the district made in accordance with section 5.56;
(g)any proposed local law of which the local government has given Statewide public notice under section 3.12(3);
(h)any local law made by the local government in accordance with section 3.12;
(i)any regulations made by the Governor under section 9.60 that operate as if they were local laws of the local government;
(j)any text that
(i)is adopted (whether directly or indirectly) by a local law of the local government or by a regulation that is to operate as if it were a local law of the local government; or
(ii)would be adopted by a proposed local law of which the local government has given Statewide public notice under section 3.12(3);
(k)any subsidiary legislation made or adopted by the local government under any written law other than under this Act;
(l)any written law having a provision in respect of which the local government has a power or duty to enforce;
(m)any rates record;
(n)any confirmed minutes of council or committee meetings;
(o)any minutes of electors' meetings;
(p)any notice papers and agenda relating to any council or committee meeting and reports and other documents that have been
(i)tabled at a council or committee meeting; or
(ii)produced by the local government or a committee for presentation at a council or committee meeting and which have been presented at the meeting;
(q)any report of a review of a local law prepared under section 3.16(3);
(r)any business plan prepared under section 3.59;
(s)any register of owners and occupiers under section 4.32(6) and electoral rolls;
(t)any contract under section 5.39 and variation of such contract;
(u)such other information relating to the local government
(i)required by a provision of this Act to be available for public inspection; or
(ii)as may be prescribed.
48Section 5.98 of the LG Act provides:
(1A)In this section
determined means determined by the Salaries and Allowances Tribunal under the Salaries and Allowances Act 1975 section 7B.
(1)A council member who attends a council or committee meeting is entitled to be paid
(a)the fee determined for attending a council or committee meeting; or
(b)where the local government has set a fee within the range determined for council or committee meeting attendance fees, that fee.
(2A)A council member who attends a meeting of a prescribed type at the request of the council is entitled to be paid
(a)the fee determined for attending a meeting of that type; or
(b)where the local government has set a fee within the range determined for meetings of that type, that fee.
(2)A council member who incurs an expense of a kind prescribed as being an expense
(a)to be reimbursed by all local governments; or
(b)which may be approved by any local government for reimbursement by the local government and which has been approved by the local government for reimbursement,
is entitled to be reimbursed for the expense in accordance with subsection (3).
(3)A council member to whom subsection (2) applies is to be reimbursed for the expense
(a)where the extent of reimbursement for the expense has been determined, to that extent; or
(b)where the local government has set the extent to which the expense can be reimbursed and that extent is within the range determined for reimbursement, to that extent.
(4)If an expense is of a kind that may be approved by a local government for reimbursement, then the local government may approve reimbursement of the expense either generally or in a particular case but nothing in this subsection limits the application of subsection (3) where the local government has approved reimbursement of the expense in a particular case.
(5)The mayor or president of a local government is entitled, in addition to any entitlement that he or she has under subsection (1) or (2), to be paid
(a)the annual local government allowance determined for mayors or presidents; or
(b)where the local government has set an annual local government allowance within the range determined for annual local government allowances for mayors or presidents, that allowance.
(6)A local government cannot
(a)make any payment to; or
(b)reimburse an expense of,
a person who is a council member or a mayor or president in that person's capacity as council member, mayor or president unless the payment or reimbursement is in accordance with this Division.
(7)A reference in this section to a committee meeting is a reference to a meeting of a committee comprising
(a)council members only; or
(b)council members and employees.
49Section 5.102 of the LG Act provides:
Nothing in this Division prevents a local government from making a cash advance to a person in respect of an expense for which the person can be reimbursed.
50Section 5.105 of the LG Act provides:
(1)A council member commits a minor breach if he or she contravenes
(a)a rule of conduct under section 5.104(1); or
(b)a local law under this Act, contravention of which the regulations specify to be a minor breach.
(2)A minor breach is a recurrent breach if it occurs after the council member has been found under this Division to have committed 2 or more other minor breaches.
(3)A council member who commits any offence under a written law, other than a local law made under this Act, of which it is an element that the offender is a council member or is a person of a description that specifically includes a council member commits a serious breach.
51Chapter V of the Criminal Code deals with criminal responsibility and provides:
22.Ignorance of law, honest claim of right
Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by an offender is expressly declared to be an element of the offence.
But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud.
23.Intention and motive
(1)Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial.
(2)Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility.
The Tribunal's jurisdiction
52These proceedings are before the Tribunal pursuant to s 5.116(2) of the LG Act which provides that the CEO may, where it considers it appropriate to do so, allege to the Tribunal that a council member has committed a serious breach.
Penalties for serious breach
53Section 5.117 of the LG Act provides that where the Tribunal is satisfied that the person against whom an allegation was made had committed a serious breach it can make one or more of the following orders:
a)that the person be publicly censured;
b)that the person apologise publicly;
c)that the person undertake specified training;
d)that the person be suspended for a period of not more than six months; or
e)that the person be disqualified from holding office as a member of a council for a period of not more than five years.
54The determination of an appropriate penalty for Ms Scaffidi will be dealt with at a separate hearing (Rush v WA Amateur Football League (Inc) [2007] WASCA 190, Buss JA at [122] on).
No authorities
55Sections 5.76, 5.78, 5.82 and 5.83 of the LG Act do not appear to have been previously considered by the Tribunal or any court.
56There are also no useful published reasons which address the capacity of the CEO to allege that a person has committed a serious breach pursuant to s 5.116 of the LG Act.
57No issue has been raised by Ms Scaffidi as to the power of the CEO to do so in this proceeding. An issue has however arisen as to what constitutes a 'serious breach'.
Relevant extrinsic material – s 19 Interpretation Act
58The Local Government Act1995 was passed after a long period of consultation. In May 1990, the Department of Local Government Western Australia issued its proposals for a new Local Government Act including Chapter 5 (Department of Local Government, Western Australia. Proposals for a new Local Government Act 'Administration': Proposals for Chapter Five of the New Local Government Act, May 1990):
Proposals for Chapter Five of the New Local Government Act 'ADMINISTRATION'
Consistent with the general aims of the new Act, Chapter Five will give councils more autonomy in key areas of their administration and reduce the involvement of the Minister in the internal affairs of local governments. At the same time, it will ensure high standards in public administration and accountability.
Accountability will be ensured in several ways. Councillors will have a specific duty to provide information to their electors and facilitate their participation in council activities. Full and regular disclosures of financial interests will be a requirement of new pecuniary interest provisions. These will act to protect the community and safeguard the reputation of council members and staff. Greater community access will be provided to council proceedings and information. There will be, for example, specific requirements for all council and committee meetings to be open to the public and for annual reports of council activities to be prepared. Full details of these and other measures are described later in the Chapter paper.
…
ELECTED MEMBERS
The community is entitled to expect that decisions made by local governments are fair and impartial, and that the conduct of elected members is beyond reproach. The pecuniary interest provisions outlined later in this Chapter paper specifically exclude councillors from voting on matters in which they have a financial interest. As at present, safeguards relating to corruption will continue to be the province of the Criminal Code rather than the Local Government Act. Nevertheless, there are circumstances in which other broader conflicts can arise between councillors personal interests and the public good. These need not be of a financial nature, and may relate to the misuse of privilege and information. The Act will set out certain key duties and responsibilities of councillors.
…
Register of Interest
5.26All committee and council members and nominated council officers must lodge written returns disclosing their financial interest within 3 months of taking office or being employed and lodge annual returns thereafter.
Council members must not only act in the interests of the whole community, but importantly, must be seen to do so. Full and regular disclosures of interest by elected and nonelected members of council and committees and selected senior staff will help to maintain and strengthen confidence in the integrity of local government. It is intended that councils would specify which officers were required to lodge written returns.
5.27The following interests must be disclosed:
•details of all paid employment;
•property interests within the district;
•companies and businesses in which the member or officer holds office or has an interest greater than the prescribed minimum;
•description of trusts in which beneficial interests are held;
•all other income sources of the member or officer; and
•relevant interests of his or her spouse.
Any real or potential source of profit or income which may reasonably give rise to a conflict of interest must be disclosed if the full value of the register is to be realised. Regulations will prescribe the manner in which this information is recorded and kept. It is not proposed that amounts of income or the value of property be disclosed.
59In the second reading speech for the Local Government Bill 1995 (WA) the Minister for Local Government stated:
This new legislation will take local government in Western Australia into a new era as the current prescriptive legislation gives way to legislation which will provide a broad framework for the operations of local governments. This will bring about significant benefits for the efficiency and effectiveness of local governments and will improve management structures. However, there will be many checks and balances. In particular, the public will be given much more information about the operation of their local government and have many opportunities to participate in and influence the decision making process.
(Western Australia, Parliamentary Debates, Legislative Assembly, 31 August 1995, Paul Omodei, Minister for Local Government, page 7547)
60The Minister further stated:
The question of pecuniary interest has been the subject of much discussion and debate in recent years and the Bill outlines the nature of pecuniary interest and the process to be followed with respect to a disclosure. This applies to councillors, chief executive officers, staff members exercising delegated powers, staff members sitting on committees and other staff nominated by the council. An important change requires members to disclose the full nature of their financial interest and to leave the meeting chamber prior to discussion and voting.
A new requirement will be for council members and senior employees to complete an annual financial interests register in a way similar to that which applies to state parliamentarians. A further area which emphasises accountability is that of access to information. The Bill specifies the type of information which will be available both to councillors and committee members and members of the public. This will include the right for members of the public to inspect the pecuniary interests register and many other registers and documents. These provisions complement the freedom of information legislation.
(Western Australia, Parliamentary Debates, Legislative Assembly, 31 August 1995, Paul Omodei, Minister for Local Government, page 7551)
61In the second reading speech from the Local Government (Official Constitution) Amended Bill (No 1 of 2007), the Minister for Local Government and Regional Department stated:
…
The bill establishes a statewide standards panel to deal with complaints about minor breaches. These are to be contraventions of a new code, or rules, of conduct. If the standards panel determines that there has been a contravention of the new code, it can impose penalties, including public censure, public apology or an order to undertake training. The Bill also enables allegations of serious breaches that is, a contravention of an act or regulations to be referred to the Director General of the Department of Local Government and Regional Development. The director general will then determine whether to refer the matter to the State Administrative Tribunal, refer the matter to another enforcement agency or take direct prosecution action. SAT will be able to impose the same penalties as a standards panel on individual elected members. However, in addition, it will be able to suspend a council member for a period of not more than six months or disqualify a council member for a period of not more than five years. The bill also enables SAT to deal with elected members who repeatedly breach the rules of conduct[.]
(Western Australia, Parliamentary Debates, Legislative Assembly, 16 November 2005, John J. Bowler, Minister for Local Government and Regional Development, page 7380)
62The Explanatory Memorandum for that Bill provided:
The Bill provides a mechanism to take action against individual council members where they do not comply with a code of conduct (rules) or they contravene particular laws applying to them in Acts and Regulations.
The key matters in the Bill are:
(i)the establishment of a statewide standards panel to deal with complaints about minor breaches which are to be contraventions of a new code (rules) of conduct with penalties including public censure, public apology or an order undertake training; and
(ii)for complaints about serious breaches to be made to the Department of Local Government and Regional Development for possible referral to the State Administrative Tribunal (SAT) for determination including similar penalties as above and stronger penalties of up to six month suspension or up to five years disqualification.
The Bill contains detailed provisions enabling regulations to be made prescribing the uniform rules of conduct for council members.
The rules are to cover the following key areas:
…
e)restriction on receiving, and disclosure of, certain gifts.
…
Allegations of repeated minor breaches, or serious contraventions of the legislation such as financial interest contraventions or the misuse of information for personal gain, are to be referred to the Director General of the Department of Local Government and Regional Development.
The Director General may then direct those matters to the SAT for assessment and the imposition of particular penalties where it appears that there is a case to answer. This will be an alternative to undertaking prosecution and other types of enforcement action.
The Director General may refer the matter to another enforcement agency if that agency is the more appropriate authority to deal with the matter. Allegations of criminal or corrupt behaviour would continue to be referred to the police or other appropriate authorities.
For serious breaches referred to the SAT by the Director General, the tribunal will have the penalties available to the standards panel at its disposal, as well as being able to suspend the council member for a period of not more than six months, or disqualify the council member for a period of not more than five years, from holding office as a member of a council.
The serious breaches to be dealt with by SAT are those matters for which there is an offence in an Act or Regulation and the offence is particular to the actions of council members. The most common will include non declarations of financial interest, the improper use of information to gain advantage or cause detriment and the failure to complete annual financial returns.
…
Section 5.116 Allegation by Executive Director of serious breach
This section provides that if a complaint is received from a person or a local government's complaints officer, the Director General may send it to SAT or decide that it can be dealt with in another way. This may involve other action by the Director General or other enforcement agencies. This action cannot be taken against the alleged offender if a court has previously prosecuted the matter.
The Director General is to advise all parties within 14 days of receipt of the complaint that the matter has been received and that the Director General will proceed to making a decision on the matter of whether or not to refer the matter to SAT.
Section 5.117 Punishment for serious breach
This section provides the various actions that SAT may order to be taken if it finds that a council member has committed a serious breach. These are public censure, public apology, training, suspension as a member for not more than six months, or disqualification for not more than five years, from being an elected member of a council. Combinations of these sanctions may be ordered. Also, SAT may make a suspended order for the suspension or disqualification orders. A suspended order may operate for a period of up to 2 years.
The Director General may make an allegation to SAT that a person has failed to comply with a condition relating to a suspended order. SAT may consider the matter and direct that the suspended order should apply[.]
63In the second reading speech for the Local Government Amendment Bill (No 17 of 2009) the Minister for Local Government stated:
I am pleased to introduce the Local Government Amendment Bill 2009. This Bill is substantially similar to the Local Government Amendment Bill 2008, which was introduced to Parliament last year but did not complete its passage because of the calling of the state election. The government has added three minor amendments to the bill, resulting principally from the recent Corruption and Crime Commission report into the City of Cockburn. The bill also incorporates a further amendment concerning the privacy of local government information.
The bill consists of more than 40 amendments to improve the operation of the Local Government Act 1995. The key amendments include provisions for new powers for local governments to enter private land to remove graffiti; widening the circumstances in which local government can take gravel and other building materials from land for building purposes; stronger powers for the minister and the Department of Local Government and Regional Development to obtain information from local governments when carrying out investigations; and improving various accountability provisions relating to declaring financial interests and election donations, and restricting the types of gifts that council members may receive. The accountability provisions in the bill have been extended to cover issues arising from the Cockburn CCC report. These additions include requiring council numbers to disclose the actual value of gifts and travel benefits in their annual financial returns and extending the requirement to declare a related financial interest at meetings when a person has provided a travel benefit to a council member[.]
(Western Australia, Parliamentary Debates, Legislative Assembly, 8 April 2009, Giovanni Castrilli, Minister for Local Government, page 2978)
64The Explanatory Memorandum for that Bill provided:
OVERVIEW OF BILL
The Bill consists of over 40 amendments to improve the operation of the Local Government Act 1995.
Key amendments relate to:
…
(c)Improving various accountability provisions relating to declaring financial interests, annual returns, elections donations and restricting the types of gifts that council members may receive[.]
Reporting obligations under the Victorian LG Act
65Some guidance as to the width of the reporting obligation under the LG Act is found in Byrne J's decision in Saunderson v Watson [2007] VSC 497 (Saunderson). The basic reporting obligation under the Local Government Act 1989 (Victoria) (LG Act (Vic)) is set out in Byrne J's judgment at [2]:
Pursuant to the Local Government Act 1989 s. 81(7), Cr Saunderson was required to submit to the Chief Executive Officer of the Council a return containing certain information in relation to the period from July 2004 to 30 June 2005 for inclusion in a register of interests. The information to be provided included a number of matters relating to the councillor's interests which might, in a given case, give rise to concerns about conflict of interest. It was not suggested in this case that Cr Saunderson had breached any conflict of interest requirement; what was in issue was the accuracy or completeness of his return in one particular.
190The remaining breaches, breaches 32, 22, 23, 25, 26 and 29 relate to single breaches. Ms Scaffidi should be disqualified for a period of six weeks for each breach a total of three months.
191Applying totality principles, the Tribunal has determined that Ms Scaffidi should be disqualified for a period of 18 months.
192Lastly the Tribunal declines to impose a penalty publicly censuring Ms Scaffidi in respect of her breach of s 5.76 of the LG Act having regard to the totality of the overall penalty being imposed and the inevitable media attention such a penalty will receive. In those circumstances an additional penalty requiring Ms Scaffidi to be publicly censured for that breach is unnecessary.
Orders
The Tribunal, having found Ms Lisa Michelle Scaffidi committed 45 serious breaches, orders pursuant to s 5.117(1)(a)(v) of the Local Government Act 1995 (WA) that:
1.Ms Lisa Michelle Scaffidi is disqualified from holding office as a member of a council for 18 months commencing at midnight on Thursday 7 September 2017.
2.The parties have liberty to apply as to costs.
I certify that this and the preceding [192] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J C CURTHOYS, PRESIDENT
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