Chief Executive Officer, Department of Local Government and Communities and Scaffidi [No 2]
[2018] WASAT 66
•24 JULY 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION: CHIEF EXECUTIVE OFFICER, DEPARTMENT OF LOCAL GOVERNMENT AND COMMUNITIES and SCAFFIDI [No 2] [2018] WASAT 66
MEMBER: DEPUTY PRESIDENT, JUDGE SHARP
MS R MOORE (MEMBER)
MR D MACLEAN (MEMBER)
HEARD: 13 AND 14 FEBRUARY 2018
DELIVERED : 24 JULY 2018
FILE NO/S: DR 212 of 2016
BETWEEN: CHIEF EXECUTIVE OFFICER, DEPARTMENT OF LOCAL GOVERNMENT AND COMMUNITIES
Applicant
AND
LISA MICHELLE SCAFFIDI
Respondent
Catchwords:
Disciplinary penalty - Local Government - Serious breaches - Failure to comply with statutory obligations to lodge annual return and disclose relevant gifts and contributions to travel - Suspension - Disqualification
Legislation:
Architects Act 2004 (WA), s 57
Corruption and Crime Commission Act 2003 (WA), s 4
Employment Agents Act 1976 (WA), s 25
Local Government (Rules of Conduct) Regulations 2007 (WA), reg 7(1)(b), reg 11, reg 12
Local Government Act 1993 (NSW)
State Administrative Tribunal Act 2004 (WA), s 3(1)
The Local Government Act 1995 (WA), s 5.116, s 5.116(2), s 5.116(3), s 5.117, s 5.117(2)(a), s 5.117(2)(b), s 5.76, s 5.76(1), s 5.78, s 5.78(1), s 5.82, s 5.82(1)(b), s 5.83, Div 1 Pt 8, Div 6 Pt 5
Result:
Respondent suspended from office
Category: B
Representation:
Counsel:
| Applicant | : | C. Thatcher & D. Leigh |
| Respondent | : | S. Penglis & P. van der Zanden |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Hotchkin Hanly |
Case(s) referred to in decision(s):
Australian Communications and Media Authority v Radio 2UE Sydney Pty Ltd (No 2) [2009] FCA 754
Barbaro v The Queen [2012] VSCA 288
Chief Executive Officer, Department of Local Government and Communities and Scaffidi [2017] WASAT 67
Chief Executive Officer, Department of Local Government and Communities and Scaffidi [2017] WASAT 67 (S)
Drinan v R [2006] NSWCCA 303
Griekspoor v Scott [2000] WASCA 419
Jemielita v Medical Board of Western Australia, unreported, WASC Library No 920584, (13 November 1992)
Khosa v Legal Profession Complaints Committee [2017] WASCA 192
Legal Profession Complaints Committee v Chin [2012] WASC 467
Mehajer v Chief Executive Officer of the Office of Local Government [2014] NSWSC 1804
Minniti v Motor Vehicle Industry [2011] WASCA 275
Office of Local Government v Councillor Genevieve Campbell of Murray Shire Council [2016] NSWCATOD 8
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97
Phillips v The Queen [2012] VSCA 140
Scaffidi v Chief Executive Officer, Department of Local Government and Communities [2017] WASCA 222
Stirling v Legal Services Commissioner [2013] VSCA 374
Tavelli v Johnson (Unreported, WASC, Library No 960693, 25 November 1996)
Victorian Legal Services Commissioner v O'Brien (No 2) [2016] VCAT 1797
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 7 July 2016, the applicant (applicant or CEO) made an allegation to the Tribunal that the respondent had committed 45 serious breaches under s 5.116(2) of the Local Government Act 1995 (WA) (LG Act).
In the application and in all the subsequent proceedings, individual allegations were referred to as 'breach' followed by a number. We will do likewise in these reasons.
The Tribunal heard the CEO's allegations on 7 and 8 February 2017.
On 9 May 2017, the Tribunal made an order that it was satisfied that the respondent had committed all 45 serious breaches alleged by the CEO. The Tribunal published its decision and its reasons in relation to the breaches; Chief Executive Officer, Department of Local Government and Communities and Scaffidi [2017] WASAT 67 (Breach Decision).
On 22 May 2017, the respondent appealed against the Breach Decision to the Court of Appeal (CACV 57 of 2017), challenging some, but not all of the findings that she committed serious breaches (Breach appeal).
The Tribunal conducted a penalty hearing in relation to the serious breaches on 14 and 21 June 2017. On 4 September 2017, the Tribunal made an order that the respondent is disqualified from holding office as a member of a council for 18 months commencing at midnight on 7 September 2017 (Disqualification Order). The Tribunal published its decision and written reasons in respect of the penalty; Chief Executive Officer, Department of Local Government and Communities and Scaffidi [2017] WASAT 67 (S) (First Penalty Decision).
On 6 September 2017, the respondent appealed to the Court of Appeal against the Disqualification Order and the other orders made by the Tribunal in the First Penalty Decision (CACV 90 of 2017) (Penalty appeal).
On 7 September 2017, the Court of Appeal ordered, inter alia, that the Disqualification Order be stayed until the determination of the Breach appeal and the Penalty appeal.
On 7 September 2017 the respondent, by agreement with the CEO, undertook not to perform any of the powers and duties conferred upon her as Lord Mayor until the determination of the appeals. The respondent continued to receive her salary as Lord Mayor.
On 1 December 2017, the Court of Appeal published its decisions and its reasons for its decisions in relation to both the Breach appeal and the Penalty appeal; Scaffidi v Chief Executive Officer, Department of Local Government and Communities [2017] WASCA 222 (Appeal Reasons).
The Court of Appeal:
a)allowed the respondent's appeal against the orders made in the Breach Decision and ordered the matter to be remitted to the Tribunal, constituted by different members, for reconsideration of the orders which should be made under s 5.117 of the LG Act in respect of 19 serious breaches namely breaches 1, 5-6, 10, 12, 27, 32-40 and 42-45, with liberty to hear further evidence if the Tribunal decided it was appropriate to do so; and
b)refused the respondent leave to appeal in relation to the Penalty appeal.
Background facts not in dispute
On 8 July 2000, the respondent was elected, by way of by-election, as a councillor for the City of Perth (City); Breach Decision at [153].
In May 2003, the respondent was re-elected, for a period of four years, as a councillor for the City; Breach Decision at [154].
On 20 October 2007, the respondent was elected, for a period of four years, as the Lord Mayor of the City; Breach Decision at [155].
On 15 October 2011, the respondent was re-elected, for a period of four years, as the Lord Mayor of the City; Breach Decision at [156].
On 17 April 2015, the Corruption and Crime Commission (CCC) began an investigation to determine, amongst other things, whether the respondent had engaged in serious misconduct with respect to her acceptance and disclosure of gifts and travel contributions; Breach Decision at [157].
On 5 October 2015, the CCC published a report regarding its investigation into the respondent's acceptance and disclosure of gifts and travel contributions (CCC Report); Breach Decision at [158]. The CCC:
a)formed an opinion of serious misconduct (within the meaning of s 4 of the then Corruption and Crime Commission Act 2003 (WA)) in relation to the respondent's failure to disclose, in her annual returns:
i)gifts or travel contributions relating to an 'Olympic Hospitality Package' to the Beijing Olympics provided by BHP Billiton;
ii)a gift of 3 nights' accommodation in August 2008 at Cable Beach Club Resort and Spa Broome provided by Hawaiian Investments Pty Ltd; and
iii)a gift of accommodation, tickets and transfers to and from the hotel to the 2009 Leeuwin concert, together with a meal, provided by BHP Billiton;
b)formed an opinion of misconduct (within the meaning of s 4 of the then Corruption and Crime Commission Act 2003 (WA)) in relation to:
i)the respondent's acceptance of the Olympic Hospitality Package; and
ii)the respondent's acceptance of the gift of accommodation at the Cable Beach Club Resort and Spa Broome.
On 17 October 2015, the respondent was again re-elected, for a period of four years, as the Lord Mayor of the City; Breach Decision at [159].
On 26 November 2015, the CEO authorised Mr David Baker and Mr Ron Murphy to take action under and subject to Div 1 of Pt 8 of the LG Act to inquire into and report on whether the respondent complied with Div 6 of Pt 5 of the LG Act, and regs 11 and 12 of the Local Government (Rules of Conduct) Regulations 2007 (WA) (LG Regulations) in relation to each:
a)gift received by the respondent; and
b)financial or other contribution that was made to any travel undertaken by the respondent, including incidental to a journey,
between 1 January 2008 and 12 October 2015; Breach Decision at [160].
On 25 January 2016, the CEO authorised Heather Wilkinson to likewise inquire into and report on the respondent's compliance with the LG Act and the LG Regulations; Breach Decision at [161].
Details of the serious breaches the subject of this proceeding
The 19 serious breaches not set aside in the Breach appeal, and therefore the subject of this proceeding, comprise:
a)one serious breach pursuant to s 5.76(1) of the LG Act under which the respondent failed to lodge with the applicant her annual return by 31 August 2009 (breach 1);
b)five serious breaches pursuant to s 5.78(1) and 5.82 of the LG Act under which the respondent failed to disclose gifts ranging in value, from approximately AUD 200 to approximately USD 24,000 in her annual returns for 2008/2009 and 2013/2014 (breaches 5, 6, 10,12 and 27); and
c)thirteen serious breaches pursuant to s 5.78(1) and s 5.83 of the LG Act under which the respondent failed to disclose a contribution to travel in her annual returns for 2007/2008, 2008/2009, 2009/2010, 2010/2011, 2011/2012, 2012/2013 and 2013/2014 (breaches 32-40 and 42-45).
Those serious breaches are described in the Breach Decision as follows:
Tribunal finding breach 1
Contrary to s 5.76(1) of the LG Act, the respondent failed to lodge with the City of Perth's Chief Executive Officer, her 2008/2009 Annual Return by 31 August 2009; Breach Decision at [166].
Tribunal finding breach 5
Contrary to s 5.78(1) of the LG Act, the respondent failed to disclose in her 2008/2009 Annual Return information relating to a gift that was required to be disclosed pursuant to s 5.82 of the LG Act in relation to BHP Billiton's gift of accommodation to attend the 2008 Beijing Olympics in Beijing, China between 22 and 25 August 2008; Breach Decision at [168].
Tribunal finding breach 6
Contrary to s 5.78(1) of the LG Act, the respondent failed to disclose in her 2008/2009 Annual Return information relating to a gift that was required to be disclosed pursuant to s 5.82 of the LG Act in relation to Hawaiian Property Investments Pty Ltd's gift of accommodation and entry to attend the 2008 Broome cup event in Broome, Western Australia between 7 August and 10 August 2008; Breach Decision at [170].
Tribunal finding breach 10
Contrary to s 5.78(1) of the LG Act, the respondent failed to disclose in her 2008/2009 Annual Return information relating to a gift that was required to be disclosed pursuant to s 5.82 of the LG Act in relation to BHP Billiton's gift of accommodation, entry and hospitality to attend the 2009 Leeuwin Concert in Margaret River, Western Australia between 6 and 8 March 2009; Breach Decision at [172].
Tribunal finding breach 12
Contrary to s 5.78(1) of the LG Act, the respondent failed to disclose in her 2008/2009 Annual Return information relating to a gift that was required to be disclosed pursuant to s 5.82 of the LG Act in relation to the Anhui Education Department's gift of accommodation to attend the Educational Promotional visit to Hefei and Nanjing, China between 10 and 13 April 2009; Breach Decision at [228].
Tribunal finding breach 27
Contrary to s 5.78(1) of the LG Act, the respondent failed to disclose in her 2013/2014 Annual Return information relating to a gift that was required to be disclosed pursuant to s 5.82 of the LG Act in relation to the Aspen Institute's gift of accommodation to attend the 'CityLab: Urban Solutions to Global Challenges' event in New York City, USA between 6 and 8 October 2013; Breach Decision at [258].
Tribunal finding breach 32
Contrary to s 5.78(1) of the LG Act, the respondent failed to disclose in her 2007/2008 Annual Return information relating to a contribution to travel that was required to be disclosed pursuant to s 5.83 of the LG Act in relation to the Taiwanese Government's contribution to her travel to attend the Inauguration of the President of Taiwan in Taipei, Taiwan between 18 and 24 May 2008; Breach Decision at [267].
Tribunal finding breach 33
Contrary to s 5.78(1) of the LG Act, the respondent failed to disclose in her 2007/2008 Annual Return information relating to a contribution to travel that was required to be disclosed pursuant to s 5.83 of the LG Act in relation to Terrapin's contribution to her travel to attend the City Development World 2008 conference in Sydney, New South Wales between 23 and 25 June 2008; Breach Decision at [270].
Tribunal finding breach 34
Contrary to s 5.78(1) of the LG Act, the respondent failed to disclose in her 2008/2009 Annual Return information relating to a gift that was required to be disclosed pursuant to s 5.82 of the LG Act in relation to BHP Billiton's contribution to her travel to attend the 2008 Beijing Olympics in Beijing, China between 22 and 25 August 2008; Breach Decision at [174].
Tribunal finding breach 35
Contrary to s 5.78(1) of the LG Act, the respondent failed to disclose in her 2007/2008 Annual Return information relating to a contribution to travel that was required to be disclosed pursuant to s 5.83 of the LG Act in relation to the Perth Education City's contribution to her travel to attend the educational promotional visit to Hefei and Nanjing, China between 10 and 13 April; Breach Decision at [273].
Tribunal finding breach 36
Contrary to s 5.78(1) of the LG Act, the respondent failed to disclose in her 2009/2010 Annual Return information relating to contributions to travel that were required to be disclosed pursuant to s 5.83 of the LG Act in relation to the World Energy Cities Partnership's contribution to her travel to attend the World Energy Cities Partnership meeting in Houston, Texas, USA between 29 April and 6 May 2010; Breach Decision at [276].
Tribunal finding breach 37
Contrary to s 5.78(1) of the LG Act, the respondent failed to disclose in her 2010/2011 Annual Return information relating to a contribution to travel that was required to be disclosed pursuant to s 5.83 of the LG Act in relation to the World Energy Cities Partnerships contribution to her travel to attend the World Energy Cities partnership meeting in Aberdeen, Scotland between 30 and 31 August 2010; Breach Decision at [279].
Tribunal finding breach 38
Contrary to s 5.78(1) of the LG Act, the respondent failed to disclose in her 2010/2011 Annual Return information relating to a contribution to travel that was required to be disclosed pursuant to s 5.83 of the LG Act in relation to the Bureau of Shanghai World Expo Coordination's contribution to her travel to attend the Harmonious City and Liveable Life event in Hangzhou, China between 2 and 9 October 2010; Breach Decision at [282].
Tribunal finding breach 39
Contrary to s 5.78(1) of the LG Act, the respondent failed to disclose in her 2010/2011 Annual Return information relating to a contribution to travel that was required to be disclosed pursuant to s 5.83 of the LG Act in relation to the Nanjing Foreign Affairs Office's contribution to her travel to attend the 2010 World Historical and Cultural Expo in Nanjing, China between 20 and 23 October 2010; Breach Decision at [285].
Tribunal finding breach 40
Contrary to s 5.78(1) of the LG Act, the respondent failed to disclose in her 2010/2011 Annual Return information relating to a contribution to travel that was required to be disclosed pursuant to s 5.83 of the LG Act in relation to World Design Capital Seoul's contribution to her travel to attend the 2010 International Conference and Convocation Ceremony in Seoul, South Korea between 7 and 9 December 2010; Breach Decision at [288].
Tribunal finding breach 42
Contrary to s 5.78(1) of the LG Act, the respondent failed to disclose in her 2010/2011 Annual Return information relating to a contribution to travel that was required to be disclosed pursuant to s 5.83 of the LG Act in relation to the World Energy Cities Partnership's contribution to her travel to attend the World Energy Cities Partnership meeting in Houston, Texas, USA between 28 April and 4 May 2011; Breach Decision at [291].
Tribunal finding breach 43
Contrary to s 5.78(1) of the LG Act, the respondent failed to disclose in her 2011/2012 Annual Return information relating to a contribution to travel that was required to be disclosed pursuant to s 5.83 of the LG Act in relation to Kagoshima University's contribution to her travel to attend the 31st Joint Conference on Medical Informatics in Kagoshima, Japan between 21 and 23 November 2011; Breach Decision at [294].
Tribunal finding breach 44
Contrary to s 5.78(1) of the LG Act, the respondent failed to disclose in her 2012/2013 Annual Return information relating to a contribution to travel that was required to be disclosed pursuant to s 5.83 of the LG Act in relation to Informa's contribution to her travel to attend the 2nd Annual Future Cities Conference and Exhibition in Dubai, UAE between 2 and 4 October 2012; Breach Decision at [297].
Tribunal finding breach 45
Contrary to s 5.78(1) of the LG Act, the respondent failed to disclose in her 2013/2014 Annual Return information relating to a contribution to travel that was required to be disclosed pursuant to s 5.83 of the LG Act in relation to the Aspen Institute's contribution to her travel to attend the CityLab: Urban Solutions to Global Challenges Event in New York City, USA between 6 and 8 October 2013; Breach Decision at [300].
The proceedings in the Tribunal (differently constituted)
A penalty hearing in relation to these 19 serious breaches was conducted by the Tribunal in accordance with the orders of the Court of Appeal on 13 and 14 February 2018 (New Penalty Hearing). In particular, the New Penalty Hearing was before a differently constituted Tribunal to that constituted for the Breach Decision and the First Penalty Decision.
For the purposes of the New Penalty Hearing, the respondent filed a witness statement dated 18 January 2018 (Exhibit 2). She supplemented her evidence with oral testimony at the New Penalty Hearing.
Mr Mark Hunter Ridgwell, an employee of the City, gave oral testimony at the New Penalty Hearing and was cross-examined.
Statutory context
The Court of Appeal in the Appeal Reasons set out at [18]-[45] a summary of the relevant provisions of the LG Act as they stood at the time of the relevant events, focussing particularly on the disclosure regime under the LG Act. It is unnecessary to repeat it in full here but we respectfully agree with that summary.
We also agree with and set out what the Court of Appeal then went on to say at [46] to [48] of the Appeal Reasons:
The purpose of the above provisions is evident from their text, and is directed to the objects specified in s 1.3(2) of the Act of resulting in 'better decision-making by local governments' and 'greater accountability of local governments to their communities'.
In broad summary, the objective legislative intention is to prevent council members from making decisions in matters in which they, or closely associated persons, have an interest which might, or might reasonably be apprehended to, divert the member from deciding the matter on its merits. The regime is also designed to deter third parties who may be affected by decisions of council from seeking to influence the decisions by the provision of gifts and contributions to travel to council members by ensuring disclosure of interests and relationships and preventing participation by an affected member.
By requiring disclosure in returns which are available for public inspection, the legislation provides a means for the identification of failures by members to disclose interests at meetings and recuse themselves from consideration of a matter in which they were interested. The disclosure mandated by s 5.82 and s 5.83 also serves to designate persons 'closely associated' with a council member, and to prevent the member's participation in decisions which may affect the financial interests of those associated persons. Importantly for the resolution of this case, the focus of the legislation is on interests and relationships which might influence a council member to decide a matter otherwise than on its merits, or which a fair-minded observer might reasonably apprehend to do so. Contrary to the findings of the Tribunal noted below, the purpose of the regime is not to prevent council members from establishing interests which could improperly influence their decisions. Rather, the Act requires that, where such an interest exists, the council member must disclose the interest and not participate in a decision which could affect that interest. In that respect, the Act's specific express provisions may be seen as an expression of, or closely related to, that aspect of the rules of procedural fairness, otherwise implied in the Act which is concerned with bias and reasonable apprehension of bias arising from personal interest.
Other matters understood to not be in dispute
It is stated in the First Penalty Decision at [76] and the Tribunal considers it still to be the case that:
1)it is not alleged that any financial benefit arose to the respondent as a consequence of her not including each 'gift' and 'contribution to travel' the subject of these proceedings in her annual returns;
2)it is not alleged that anyone, including the City, suffered any financial detriment as a consequence of the respondent not doing so;
3)other than breaches 5, 34, 6 and 10, each 'gift' and 'contribution to travel' related to official visits by the respondent in her capacity as Lord Mayor;
4)the respondent is not the subject of any finding by a Court, Tribunal or Panel of a contravention of the LG Act or LG Regulations other than:
a)a finding on 20 March 2017 by the Local Government Standards Panel that the respondent committed a minor breach of reg 7(l)(b) of the LG Regulations at an ordinary council meeting on 17 May 2016 by allowing Councillor Janet Davidson to move a motion without notice that Council declare a vote of no confidence in the Deputy Lord Mayor, Councillor James Limnios (for which the Panel required that the respondent be publicly censured); and
b)the Tribunal's findings in the Breach Decision;
5)the City's Memorandum dated 17 December 2008 provided for the reporting of gifts, for the purpose of recording in the City's Gift Register, to be made, inter alia, to Ms Sue Higgins;
6)on 12 August 2008, the respondent reported to Ms Higgins by email the gifts and contribution to travel the subject of breaches 5, 6 and 34. Ms Higgins failed to register the gifts in the City's Gift Register. The respondent acknowledges that she was careless in completing her 2008/2009 annual return by not noticing that the subject matter of breaches 5, 6, and 34 were not included.
The issue
The issue the Tribunal must determine is the appropriate sanctions to be imposed upon the respondent, pursuant to s 5.117 of the LG Act, in relation to the each of 19 serious breaches she has committed.
The sanctions available for each serious breach are set out in s 5.117 of the LG Act. Under that section the Tribunal may:
a)publicly censure the respondent;
b)require the respondent to publicly apologise;
c)require the respondent to undertake specified training;
d)suspend the respondent from office for a period of not more than six months; or
e)disqualify the respondent from holding office as a member of a council for a period of not more than five years.
The applicant's submissions
It is the applicant's position that the circumstances of the breaches, including the number of breaches and the period of time over which the breaches were committed and other circumstances relevant to the respondent, are such that the appropriate sanction in this case is disqualification of the respondent from holding office.
The applicant says that in the event that the Tribunal concludes that disqualification from holding office is the appropriate sanction, the Tribunal must then determine the length of the disqualification, and whether the disqualification should take effect immediately pursuant to s 5.117(2)(a), or should be suspended pursuant to s 5.117(2)(b).
The applicant submits that, in determining the appropriate sanction, the matters that the Tribunal is to have regard to include, but are not limited to:
a)the nature and seriousness of the 19 serious breaches;
b)the likelihood of the respondent committing further breaches of the LG Act in the future;
c)the respondent's insight into her serious breaches;
d)whether the respondent has demonstrated remorse;
e)the need to deter other councillors from similar conduct and thus to maintain expected standards of conduct of councillors;
f)the need to protect the public and maintain public confidence in local government councillors by properly enforcing a system intended to ensure that council members do not make decisions in matters in which they, or closely associated persons, have an interest which might, or might reasonably be apprehended to, divert those councillors from deciding the matters on their merits, and denouncing any transgressions of that system; and
g)whether the conduct is such that a suitable sanction can be imposed short of depriving the constituents of their representative that adequately penalises a councillor's failure to comply with their statutory obligations and to vindicate the public interest in maintaining the integrity of municipal administrators.
The applicant says that it is open to the Tribunal to also consider any other matters relevant to the councillor's conduct and other matters which may be regarded as aggravating the conduct or mitigating its seriousness. However, in the applicant's view, mitigating factors, such as the absence of prior misconduct, or limited experience in the office, are of considerably less significance than in the criminal process because the jurisdiction is protective, not punitive.
The applicant contends that the principles governing the imposition of penalty in matters brought before the Tribunal by a vocational regulatory body under a vocational Act (as both those terms are defined in s 3(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act)) should be applied to the imposition of sanction in this case, on the basis that these proceedings share a number of similarities with vocational disciplinary proceedings. Those similarities include that:
a)the LG Act refers disciplinary matters arising out of serious breaches by council members to the Tribunal to be determined (s 5.116(3) in this instance), in a manner similar to referrals by vocational regulatory bodies; (for example, s 57 of the Architects Act 2004 (WA) and s 25 of the Employment Agents Act 1976 (WA);
b)the jurisdiction conferred on the Tribunal allows for imposition of various civil penalties, with the most serious sanction being the disqualification of the relevant council member from holding office (being analogous to the cancellation of the registration of a person in vocational proceedings);
c)the matter pertains to the conduct of a member of a body (specifically, the City and generally, as the mayor and councillor of a local government). The Lord Mayor has the benefit of significant privileges as a result of her membership of that body; and
d)the public has an interest in ensuring that members of that body act in accordance with their obligations under the LG Act so as to ensure that they do not make local government decisions other than on their merits and in accordance with the public interest.
The applicant does not contend that the respondent's failure to disclose gifts or contributions to travel was deliberate and malicious. That is, the applicant does not suggest that on any occasion the respondent, while completing an annual return and at that moment:
a)recalled a gift or contribution to travel;
b)recognised that that gift or contribution to travel was one that ought to be disclosed; and
c)intentionally decided to not disclose the gift or contribution to travel, even though she knew she ought to.
Instead the applicant submits that the respondent paid scant, if any, regard to the completion of her annual returns, and did not take even the most perfunctory steps to ensure that they were properly completed. Her attitude, in the view of the applicant, towards the completion of her annual returns was utterly dismissive, if not contemptuous. By her failures to lodge accurate annual returns the respondent seriously and repeatedly failed to properly carry out an obligation of her office.
The applicant submits that remorse, at least in the sense relevant to determining sanction, is dependent upon insight into offending behaviour.
To have insight into the breaches, the Tribunal must be satisfied that the respondent has demonstrated that she understands why the breaches are serious, why she is culpable and how those breaches came about, not simply that she is sorry that the breaches occurred.
The respondent's submissions
The respondent submits that, as was noted by the Tribunal in the Breach Decision, what is in dispute in those proceedings is not the facts, but the proper construction of the relevant provisions of the LG Act and the proper characterisation of the facts and their application to the proper construction of LG Act. The respondent says that it follows that the sole basis upon which an appropriate penalty in this matter should be determined is by reference to the need to publicly demonstrate that those who do not properly comply with the disclosure regime mandated by the LG Act which exists for the prevention of corruption or improper influence by a councillor.
The respondent acknowledges and accepts the important role that the disclosure regime plays under the LG Act and that it is as described in the Breach Decision at [75] and [76].
The respondent asks the Tribunal to take the following matters into account:
1)The complete absence of any continuing education provided by the Department or the City in regard to the respondent's disclosure obligations.
2)The respondent was not alone in holding her own misunderstanding of the operation of the disclosure requirements of the LG Act and that many other elected councillors and employees took the same approach that she did.
3)The respondent is otherwise of good character.
4)Save for the findings in this matter and a written finding of a 'minor breach' by the Local Government Standards Panel, there are no prior adverse findings against the respondent by a Court or a tribunal under the LG Act.
5)The conduct complained of does not affect the respondent's capacity or qualities of character required to be the Lord Mayor.
6)The respondent is truly contrite and remorseful.
7)The respondent has shown genuine insight into her errors.
8)There is no reasonable basis to believe that, in all the circumstances, there is a real prospect of any future repetition of the conduct complained of.
The respondent makes the following further submissions:
1)The principles governing the imposition of penalty in vocational disciplinary proceedings are no more than a guide that can be applied by the Tribunal in this matter.
2)The respondent says that she does not allege that her conduct was caused by a lack of support, that her obligations were not personal to her or that she had complied with her disclosure obligations by asking another person to record gifts on a gift register.
3)The respondent says that she knows and understands the need for stringent disclosure of obligations and the serious responsibilities that come with her office.
With regard to the first of those submissions, namely the guidance that may be provided by penalty decisions in vocational disciplinary proceedings, the respondent asserts that a fundamental difference between those and this case is that this case concerns individuals who have been elected to office by their constituents, where the former do not.
The respondent further submits that, unlike a profession, there are no qualifications or training required in order to hold office as a councillor, nor is there any course that a councillor is required to undertake before holding office. It is therefore, in the respondent's submission, fundamentally wrong in principle to judge the conduct of a councillor in the same way as the Tribunal would judge the conduct of a professional such as a lawyer, doctor or dentist.
In any event, the respondent notes that, generally speaking, cases involving carelessness usually result in a fine or possibly a short suspension or both. Disqualification is ordinarily narrowly reserved in cases involving dishonesty, but even in cases involving dishonesty, suspension is sometimes regarded as sufficient.
The respondent concedes that an order for public censure, a public apology or training or a combination of those penalties would not be a sufficient penalty in all the circumstances.
However, the respondent says that this does not mean that the serious breaches should be described as being in the upper range of seriousness. The respondent submits that the serious breaches are in the midrange.
The respondent considers that an appropriate penalty should be an order of suspension at the lower end of the scale where the maximum is six months for each breach and that it should be in the form of a suspended order, as defined and provided for in s 5.117(2)(b) of the LG Act.
Principles to be applied by the Tribunal in this proceeding
The discretionary nature of the power to impose a penalty involves a weighing of various considerations which may point in different directions. By definition, there is no single correct answer to a question of a discretionary character; Appeal Reasons at [210].
A separate offence (and therefore a separate serious breach) is committed each time a council member fails to comply with the requirements to disclose each gift or contribution to travel in a single annual return; Appeal Reasons at [198].
In the First Penalty Decision at [33]-[34] and [38]-[39], the Tribunal found that the principles applicable to the imposition of penalties in vocational proceedings were generally applicable to the instant case. The applicant, in support of that approach, points out that this finding was not challenged by the respondent during the appeal proceeding in the Court of Appeal; Outline of Applicant's Submissions on Sanction para 42.
The principles relevant to the imposition of penalty in vocational disciplinary proceedings are well known. Fundamentally, the object of disciplinary proceedings is the protection of the public and the maintenance of proper professional standards. The maintenance of those standards is in and of itself conducive to the protection of the public. Disciplinary proceedings are not designed to punish the person who is disciplined; Paridis v Settlement Agents Supervisory Board [2007] WASCA 97 at [25]. Penalties are necessary to 'maintain the high standards and good reputation of the profession generally and in the eyes of the community' and to satisfy the 'need to deter others who may be like minded to transgress in the future'; Jemielita v Medical Board of Western Australia, unreported, WASC Library No 920584, (13 November 1992).
In contrast to vocational disciplinary proceedings, there is little judicial guidance as to the principles relevant to the imposition of penalty in disciplinary proceedings under the LG Act. The NSW Civil and Administrative Tribunal, which is responsible for considering complaints against local government councillors under the Local Government Act 1993 (NSW), has commented that the nature of the Tribunal's jurisdiction when considering such complaints 'is essentially protective: by denouncing the conduct and imposing appropriate sanctions under the Act, public confidence in the institutions of local government is (at least) maintained, and general deterrence to others who might be considering similar conduct is provided'; Office of Local Government v Councillor Genevieve Campbell of Murray Shire Council [2016] NSWCATOD 8 at [14(2)].
In Mehajer v Chief Executive Officer of the Office of Local Government [2014] NSWSC 1804 (Mehajer), Adams J accepted at [11] that there was an important distinction between those penalties that do not involve preventing a councillor from carrying out his or her civic duties on the one hand and those that do: 'amongst other considerations, the imposition of the latter involves, of necessity, depriving the councillor's constituents of the input into the deliberations of the Council, for which he or she was elected'. Notably, the Court in that case essentially accepted a submission set out at [15] of the decision, being 'that suspension should be reserved for cases involving intentional concealment of material information or repeat offences or other similar serious cases'.
The Tribunal is in no doubt that, in the disposition of this case, guidance is to be derived from the principles applicable in vocational proceedings. However, the applicant is not a vocational regulatory body within the meaning of the SAT Act and this proceeding is not to decide a penalty in the context of the regulation of a profession. The Tribunal considers that there are unique considerations arising in relation to disciplinary proceedings under the LG Act, one being that members of local government are elected to office by their constituents, not admitted to practice by a regulatory body.
After taking everything into account, including the statutory intention of the disclosure provisions of the LG Act as found by the Court of Appeal in the Appeal Decision at [46] to [48] (set out in full earlier in these reasons), the Tribunal concludes that penalties in disciplinary proceedings under the LG Act are imposed in order to:
1)protect the integrity of the decision making processes of local government;
2)instil public confidence in the fact that a failure to comply with disclosure requirements will not be tolerated and will attract an appropriate penalty;
3)ensure that council members understand their responsibility to make decisions on the merits of the matter and do not participate in decisions that they have, or could be seen to have, an interest;
4)ensure that council members understand the importance of their disclosure requirements, and that a failure to disclose interests will have serious consequences, whether or not that council member participates in the making of the relevant decision;
5)deter a person from repeating the conduct which gave rise to the finding of a serious breach; and
6)deter others from engaging in similar conduct in the future.
For the same reasons set out in the First Penalty Decision at [10] to [20], and as we have already observed earlier in these reasons, the Tribunal considers that the objects of penalty are protective, not punitive.
Appropriate sanction relevance of the penalty sought in the application
The respondent continues to press her point that when the application to the Tribunal was first made by the applicant, the penalty sought was a period of suspension of six months. She accepts that the applicant's position has changed but still maintains that it would be a breach of procedural fairness to impose a penalty which was not sought in the application.
This was raised by the respondent before the Tribunal as previously constituted in the First Penalty Decision. The Tribunal dealt with that point in the First Penalty Decision at [176] to [178] and the Tribunal in this proceeding holds the same view, namely that the Tribunal is not bound by the orders sought in the application. Without the necessity of repeating what was said in the First Penalty Decision, the Tribunal adopts the finding on that point as if the words at [174][178] are set out here in full.
Appropriate sanction matters to be taken into consideration
The question of the appropriate penalty is to be determined at the time of the relevant hearing, and not at the time of the misconduct; Khosa v Legal Profession Complaints Committee [2017] WASCA 192 at [195].
In determining an appropriate sanction in these proceedings, the Tribunal considers, and there is no dispute about this between the parties, that the following matters may require consideration:
a)the seriousness of the serious breaches;
b)whether or not the respondent shows any insight and remorse;
c)whether or not the Tribunal can be satisfied that there is no or little likelihood of the respondent committing further breaches of the LG Act;
d)the respondent's disciplinary history;
e)her personal circumstances at the time of the conduct, and of imposing sanction; and
f)any other matters which may be regarded as aggravating the conduct or mitigating its seriousness.
Of those considerations, the applicant considers that the ones likely to require most consideration 'relate to insight, remorse and of course the most important, likelihood of repetition'; ts 7, 13 February 2018.
Counsel for the respondent agrees that the likelihood of repetition is an important consideration, and makes the point that 'there's been a lot of water under the bridge since the serious breaches. There's been no repetition as far as we're concerned, and that's an important factor to take into account'; ts 14, 13 February 2018.
The respondent further goes on to say that the events of breach 1 (failure to lodge an annual return by 31 August 2009) in question took place 'eight and a half years ago and there's no evidence of any repetition'; ts 20, 13 February 2018.
Insight, remorse and likelihood of repetition
Due to the parties' agreement that insight, remorse and the likelihood of repetition are the most relevant issues for consideration, and the fact that the parties have urged the Tribunal to focus on these concepts, the Tribunal will address the considerations around these issues in more detail.
Remorse and insight by, in this case, a councillor, are relevant to sanction because they go to the likelihood of repetition of misconduct, and thus to the imperative of protecting the public against future misconduct; Legal Profession Complaints Committee v Chin [2012] WASC 467 at [32]; Victorian Legal Services Commissioner v O'Brien (No 2) [2016] VCAT 1797 at [22].
The question of whether the respondent has shown remorse and insight essentially involves matters of impression and judgment for determination by the Tribunal, ordinarily after having heard and observed the respondent; Minniti v Motor Vehicle Industry [2011] WASCA 275 (Minniti) at [69].
Minniti at [71] also notes the relevance of a person before the Tribunal blaming others for their conduct to the issue of remorse and insight.
With regard to the significance of a person's remorse and insight in determining an appropriate penalty, remorse is not simply an abstract feeling of sorrow or regret for the fact of an offence, divorced from understanding or acknowledgement of its nature or causes, or the offender's culpability for what occurred; Barbaro v The Queen [2012] VSCA 288 at [36]-[39]; Phillips v The Queen [2012] VSCA 140 at [101].
The question of whether there is any substance to the various apologies that have been proffered by the respondent must be considered against her conduct subsequent to those apologies. This leads to a true determination of whether a person understands the error of his or her ways; applicant's Submissions on Sanction dated 22 December 2017, para [60].
This is supported by Wheeler J in Tavelli v Johnson (Unreported, WASC, Library No 960693, 25 November 1996) where at 8, her Honour in relation to assessing previous convictions in the context of whether a person is 'fit and proper' stated that a relevant factor is:
… where the person convicted demonstrates genuine remorse and contrition, true insight and understanding of the earlier turpitudes. See Good v Medical Board of WA; unreported; SCt of WA; Library No 940678; 6 December 1994 at 31 and the cases there cited. The understanding demonstrated will generally carry more weight if it can be shown that it is demonstrated by the person's actions as well as by the person's words.
Findings
Seriousness of the breaches under the LG Act
We have set out earlier in these reasons the range of penalties open to the Tribunal following a finding of the occurrence of a breach of s 5.76 and s 5.78 of the LG Act. In order to determine which of these penalties will apply, it is necessary to evaluate the degree of seriousness of each of the serious breaches.
We first note that failure to comply with s 5.76 and s 5.78 of the LG Act constitute offences. The maximum penalty for a contravention under each section is a fine of $10,000 or imprisonment for two years.
This, in our view, indicates the seriousness with which Parliament regards failures to disclose all relevant information in annual returns, or to lodge those returns.
In this case, the respondent's breaches have been dealt with by way of the process set out in s 5.116 of the LG Act (thus attracting one or more of the civil sanctions set out under s 5.117 of the LG Act). However, the Tribunal does not consider that this in any way means that the breaches committed by the respondent should be regarded as less serious.
In particular, the respondent's breaches are high enough in the range of seriousness such that, as the respondent properly concedes, an order for public censure, a public apology or training or a combination of those penalties would not be sufficient.
However, we also consider that the breaches by the respondent, while serious, are not in the upper range of seriousness.
The respondent's failure to lodge her 2008/2009 annual return by 31 August 2009 (breach 1), an offence under the LG Act and a serious breach, must be considered in light of the fact that the return was subsequently lodged between 1 September 2009 and 3 November 2009 and probably nearer to the former date (Breach Decision at [165]). Counsel for the respondent pointed out to the Tribunal that firstly, the respondent filed her annual return late on only one occasion, which was conceded by counsel for the applicant (ts 19-21, 13 February 2018), and secondly, it is possible that this late annual return could have been lodged only one day late (ts 19-20, 13 February 2018), a suggestion which was not contradicted by counsel for the applicant.
We consider that this breach is not in the upper range of seriousness.
On the other hand, the other breaches, namely failing to disclose information in an annual return, are higher in the range. However they are not in the upper range when considered in the context of the parties' agreement that these failures were not done deliberately or intentionally and these failures did not give rise to any financial benefit to the respondent or cause detriment to any other person.
Insight
We next turn to determine the extent to which we consider that the respondent has insight into her conduct. This will then lead to a finding as to whether the applicant shows genuine remorse.
We have already accepted the applicant's submission that a true determination of whether a person understands the error of his or her ways is best tested against the person's subsequent conduct. At the hearing, the applicant drew the Tribunal's attention to a number of examples of conduct on the part of the respondent which are not conducive to a conclusion that she has insight.
The concerns expressed by the applicant, and the Tribunal's findings on those concerns, are as follows.
The applicant notes the respondent's contention that processes within the City of Perth have changed so as to minimise the prospect of matters not being disclosed. To this end the respondent tendered into evidence a completed 'elected member gift declaration' form (Exhibit 2 Annexure B) which she says (and which was confirmed by Mr Ridgwell in his evidence) has been adopted for use by the City to assist councillors with their disclosure obligations under the LG Act.
However, during cross-examination, counsel for the applicant pointed out to the respondent that the form was deficient in that it made no provision for the inclusion of the address of the person who made the gift as required by s 5.82(1)(b) of the LG Act.
Counsel for the applicant, appropriately, tested the respondent with regard to her role in developing the form. It was put to the respondent that she ought to have been aware that the form did not comply with the LG Act and that the respondent ought to have made sure that others who used the form were compliant with the legislation; ts 31, 13 February 2018. The respondent properly conceded this. However, this does not lead us to a conclusion that the respondent lacks insight into her conduct.
Doubtless, if the respondent checked the form against the provision then she would have noticed that an address was required to be included for the donor. However it is open to us to conclude that this detail, amongst the others that were required and which were included on the form, were overlooked and that the missing particular was a regrettable but otherwise innocent oversight.
On balance, we consider that this should be taken as a mistake on the part of the respondent which has now been identified and which the Tribunal accepts will be addressed. While embarrassing for the respondent, the Tribunal does not consider that this matter establishes, what was said by the applicant to be the most important of the factors to be considered, namely the likelihood of repetition of conduct by the respondent that is a serious breach.
The respondent was then taken to a media statement that she made on 9 May 2017, the day when the Tribunal delivered the Breach Decision. The statement included the words 'to repeat, the error of paperwork non-disclosures was inadvertent and that is the nub of the issue (and in my opinion always was)' Exhibit 7, page 604; ts 33, 13 February 2018.
The respondent conceded that the statement did not make any mention of the importance of accountability in local government. However, the respondent told the Tribunal that she now has a better understanding of this issue and that her understanding had continually evolved; ts 34, 13 February 2018. The Tribunal accepts this. As we have said, we must have regard to the respondent's understanding of her obligations now, not at the time of the breaches or at the hearing which lead to the First Penalty Decision.
The respondent was then asked, in connection with breaches 5 and 34, both relating to the Beijing trip, about statements that she made during an interview with a journalist, Mr Adshed on 22 May 2015 (the transcript of the interview is Exhibit 3). The respondent, in the course of that interview, told Mr Adshed that the acceptance of the trip was not required to be placed on a register.
However, she was then reminded about her email exchange of 12 August 2008 with Ms Sue Higgins, from which it is clear that it was her understanding at the time that the matter did in fact need to go on the gift register; ts 42, 13 February 2018.
The respondent was next referred to her witness statement (Exhibit 2) in which she referred to the Beijing trip and described it as a matter that she knew ought to be disclosed even though it was, in her view, essentially social in nature; Exhibit 2, paragraph 5. This was despite the fact that she had originally described the trip as an 'ambassadorial' trip.
It was suggested to the respondent that it therefore was difficult for the Tribunal to rely on what she said at any point about her understanding of her disclosure requirements, given how much her position appears to change. She responded by saying 'I've had a lot of examinations and my story has not altered. My words may have altered'; ts 45, 13 February 2018.
While what the respondent told Mr Adshead is different from her previous and subsequent statements on the same issue, the Tribunal considers that these differences can be explained by the fact that the interview took place some seven years after the email to Ms Higgins and while the respondent was in her car travelling to Busselton where she was to deliver a 'very significant keynote address'; ts 46, 13 February 2018. We do not regard the content of the interview with Mr Adshead as significant in our determination on whether the respondent has insight into her conduct.
On the other hand, the Tribunal notes and accepts the respondent's responsive submission that 'in particular, the most recent breaches occurred almost three years ago and there is no evidence of the respondent not declaring 'gifts' and 'contributions to travel' that required disclosure since then'; respondent's Submissions on Penalty dated 12 January 2018, para [39(i)].
Remorse
The Tribunal had the opportunity to consider carefully the manner in which the respondent gave her evidence. It is the Tribunal's view that the respondent has displayed considerable remorse and we do not believe that the respondent is simply expressing sorrow or regret. The Tribunal is satisfied that she does not seek to blame others. It is our conclusion that she has a genuine understanding of the serious breaches, the reason for the applicant's application to the Tribunal, the purpose of the disclosure requirements in the LG Act and the importance of complying with them.
Risk of future breaches
Following from our findings on the respondent's insight into her conduct and her genuine remorse, we consider that the risk of future misconduct is minimal.
Disciplinary history
As we have already said, on 20 March 2017 the Local Government Standards Panel found that the respondent contravened reg 7(l)(b) of LG Regulations, by allowing a no confidence motion to be brought against another councillor without notice.
There are no other findings of contraventions of the LG Act so far as we are aware.
We have set out earlier in these reasons the details of the CCC Report.
Personal circumstances of the respondent
The respondent is an experienced councillor having been first elected as a local government member on 8 July 2000. She has been the Lord Mayor of Perth since 20 October 2007, a period spanning more than a decade. The respondent's experience are not mitigatory factors. We do not consider that she has any excuse for not being aware of her disclosure obligations under the LG Act, or for not at least seeking assistance and guidance with respect to those obligations.
Other matters
It is the Tribunal's view that there are no other matters to take into consideration other than matters already considered.
Conclusion
The Tribunal has already said that none of the 19 serious breaches is in the upper range of seriousness. Each of them is low to mid-range. While we accept the observation that 'it is always possible to imagine a worse case' (Drinan v R [2006] NSWCCA 303 at [22]), in this case it is not at all difficult to imagine worse instances of these serious breaches. The respondent did not fail entirely to submit her 2008/2009 annual return, but instead it was submitted late. Further, it is conceded that the respondent did not receive any financial benefit as a consequence of her failing to disclose the relevant 'gifts' and 'contributions to travel' in her annual returns. Similarly, it is not alleged that the City or anyone else suffered any financial detriment as a result of these failures. Importantly, the applicant does not contend that the respondent's failings were anything other than carelessness.
The Tribunal does not consider that the matters identified by the applicant are such to cause it to conclude that the respondent is presently without insight or remorse or that she could be described as likely to repeat the conduct the subject of the breaches. The Tribunal is satisfied that the respondent has shown insight into and remorse for her conduct. Further, the Tribunal is not persuaded that the respondent is at risk of committing further serious breaches of the disclosure requirements of the LG Act.
Penalty consideration
The Tribunal has not previously imposed penalties in respect of 'serious breaches' under the LG Act (other than in the First Penalty Decision), and there are thus no cases that can be looked to as an exact comparator in determining an appropriate sanction.
The breaches, by their number and the sustained period over which they took place, constitute a course of conduct. The Tribunal does not consider that the breaches, or any collection of them, constitute a single transaction or that the principles relating to sentencing in criminal matters known as the one transaction principle apply in this instance. While these are not of course criminal proceedings, '[c]ourts often use criminal language and authorities when imposing penalties in disciplinary proceedings'; Stirling v Legal Services Commissioner [2013] VSCA 374 at [66].
The Tribunal's obligation in assessing penalties for a course of conduct, such as is demonstrated by the serious breaches established, is to assess a penalty for each serious breach. However, as the Tribunal stated in the First Penalty Decision at [181][182], the totality principle applicable in passing criminal sentences should also be applied when imposing civil penalties; Australian Communications and Media Authority v Radio 2UE Sydney Pty Ltd (No 2) [2009] FCA 754 at [170][171]. Accordingly, if the cumulative penalty is inappropriate overall, then the Tribunal must adjust the penalties to avoid an excessive outcome.
In the First Penalty Decision at [164], the Tribunal stated that it was not satisfied that a penalty other than suspension or disqualification was appropriate. The Tribunal considers that this remains the case. As we mentioned earlier in these reasons, the respondent also accepts that a penalty less than suspension or disqualification is not an appropriate penalty.
The sanctions under consideration are thus either a suspension for a period of not more than 6 months for each serious breach, or disqualification from holding office as a member of a council for a period of not more than 5 years for each serious breach.
While it is open to the Tribunal under the LG Act to disqualify the respondent from holding office, the Tribunal does not consider that a disqualification is an appropriate penalty for any of the serious breaches in this proceeding. We consider that the penalty of disqualification from holding office ought to be reserved for breaches which involve dishonesty or concealment. However, to the extent that Mehajer is authority for the proposition that an order for suspension should similarly be reserved, we respectfully disagree. The Tribunal is satisfied in this case that, despite the fact that there was no finding of dishonesty in the respondent's conduct, a penalty of an order for suspension is appropriate. We accept that we will be depriving constituents of their elected official, but nonetheless we must adequately recognise that the respondent failed to comply with her statutory obligations. The penalty needs to be such that it will instil confidence in the greater public, not just to constituents, that the Tribunal considers that these failures are unacceptable. It must also send a message to other members of local government who may be tempted to regard the disclosure requirements of the LG Act as unimportant. This was no matter of momentary oversight but rather a sustained carelessness by the respondent with regard to her reporting and disclosure obligations under the LG Act. These failures each had the potential to defeat the objects of the LG Act by not allowing proper scrutiny of the activities of the respondent.
The Tribunal considers that a suspension is a significant penalty.
Penalty
Having regard to all the factors set out above, the Tribunal has determined that the following penalties are therefore appropriate.
For breach 1 (late lodgement of annual return), a period of suspension of 1 month.
For each of breaches 5, 6, 10, 12 and 27 (failures to disclose gifts), a period of suspension of 3 months.
For each of breaches 32, 33, 34, 35, 36, 37, 38, 39, 40, 42, 43, 44 and 45 (failures to disclose travel), a period of suspension of 3 months.
Applying the totality principle, and taking into account the period of 'voluntary suspension' referred to in paragraph [9] above, undertaken by the respondent following the stay of the Disqualification Order, the Tribunal will order that the suspensions for each of breaches 5, 6, 10, 12 and 27 will be served concurrently and that the suspensions for each of breaches 32, 33, 34, 35, 36, 37, 38, 39, 40, 42, 43, 44 and 45 will be served concurrently. Thus the total effective penalty for breaches 5, 6, 10, 12 and 27 is 3 months suspension and the total effective penalty for breaches 32, 33, 34, 35, 36, 37, 38, 39, 40, 42, 43, 44 and 45 is 3 months suspension. However, the periods of suspension for breach 1 (1 month) for breaches 5, 6, 10, 12 and 27 (3 months) and for breaches 32, 33, 34, 35, 36, 37, 38, 39, 40, 42, 43, 44 and 45 (3 months) will be served cumulatively. Thus the total effective penalty is a period of suspension of 7 months.
Suspended order
The Tribunal is required to consider whether it should, as it is able to do under s 5.117(2) of the LG Act, order that the penalty is suspended.
The applicant submits that it is not appropriate for the Tribunal to suspend any order for suspension or disqualification as the case may be.
The respondent disagrees, referring the Tribunal to the decision of the Supreme Court of Western Australia in Griekspoor v Scott [2000] WASCA 419. In that decision RobertsSmith J found:
87The issue of suspending a sentence of imprisonment imposed for a third conviction for driving under suspension arose again in O'Brien v Ritchie, unreported; SCt of WA; Library No 990123; 17 March 1999. The appellant had been sentenced to 4 months' imprisonment for his third offence of driving under suspension within 15 months.
88McKechnie J referred to the earlier authorities and expressed agreement that driving without an appropriate driver's licence especially when disqualified from holding or obtaining one is a "pernicious offence". He said (at 4):
"It is difficult to detect; it has ramifications in terms of insurance and it often evidences a disregard for the normal rules of society necessary when the community is so heavily depended upon motor vehicles."
89On the issue of a suspended sentence McKechnie J referred to Liddington, GP, Krakouer v Durka and Calway v Wiebe and concluded (at 7):
"Distilling all the judgments it seems to me that there are no prescriptive rules as to when a sentence may or may not be suspended and that although there is a bias towards rehabilitation or reaffirmation, other factors singly or in combination may, in particular circumstances, render the suspension of a sentence appropriate. In the case of persistent conduct there is more likelihood that the offender will have to demonstrate some special circumstances which would justify the suspension of a sentence of imprisonment."
90With respect I agree entirely with that observation: it is consistent with the approach explained by the High Court in Dinsdale.
The Tribunal considers that in this matter there is persistent conduct by the respondent and does not find the existence of any special circumstances.
We do not consider that it is appropriate in this case to make an order under s 5.117(2) of the LG Act and therefore the suspension will not be suspended.
Orders
1.The Tribunal orders that the respondent, having been found to have committed 19 serious breaches under the Local Government Act 1995 (WA) (LG Act) pursuant to s 5.117 of the LG Act:
(a)for one serious breach of s 5.76(1) of the LG Act (late lodgement of an annual return) is suspended from office for a period of one month;
(b)for five serious breaches of s 5.78(1) and s 5.82 of the LG Act (failure to disclose gifts) is suspended from office for a period of 3 months for each breach; and
(c)for thirteen serious breaches of s 5.78(1) and s 5.83 of the LG Act (failure to disclose travel contributions), is suspended from office for a period of 3 months for each breach.
2.The Tribunal further orders that:
(a)the penalties in order 1(b) are to be served concurrently and the penalties in order 1(c) are to be served concurrently;
(b)the penalty in order 1(a), the concurrent penalties in order 1(b) and the concurrent penalties in order 1(c) are to be served cumulatively, with a total effective penalty of 7 months suspension from office; and
(c)the total period of suspension in order 1(c) is to commence within 3 days of the date of these orders.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JUDGE T SHARP, DEPUTY PRESIDENT
24 JULY 2018
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