CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF LOCAL GOVERNMENT, SPORT AND CULTURAL INDUSTRIES and SOUTHWELL - [2021] WASAT 153 (S)

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION: CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF LOCAL GOVERNMENT, SPORT AND CULTURAL INDUSTRIES and SOUTHWELL [2021] WASAT 153
MEMBER:   DR B MCGIVERN, MEMBER
HEARD:   9 SEPTEMBER 2021
DELIVERED          :   1 DECEMBER 2021
FILE NO/S:   DR 34 of 2021
BETWEEN:   CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF LOCAL GOVERNMENT, SPORT AND CULTURAL INDUSTRIES
Applicant
AND
MICHAEL SOUTHWELL
Respondent

Catchwords:

Local government - Rules of Conduct - Obligation to disclose an interest that could affect impartiality - Relationship involving dispute - Timing, nature and circumstances of dispute sufficiently proximate to matter to be discussed by Council to give rise to an interest requiring disclosure - Knowledge of circumstances - Strict and personal character of obligation - Minor breach - Recurrent breach - Principles relevant to sanction

Legislation:

Interpretation Act 1984 (WA), s 37(1)(b)
Local Government (Model Code of Conduct) Regulations 2021 (WA), reg 4
Local Government (Rules of Conduct) Regulations 2007 (WA), reg 3, reg 6(2)(b), reg 7(1)(b), reg 11(1), reg 11(1)(a), reg 11(2), reg 11(4)
Local Government Act 1995 (WA), s 1.4, s 9, s 5.60, s 5.105(1)(a), s 5.105(2), s 5.106, s 5.112(2), s 5.113, s 5.117(1)

Result:

Application allowed

Category: B

Representation:

Counsel:

Applicant	:	N/A
Respondent	:	N/A

Solicitors:

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

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

Chief Executive Officer, Department of Local Government and Communities and Scaffidi [2017] WASAT 67 (S)
Corr and Local Government Standards Panel [2014] WASAT 86
Legal Profession Complaints Committee and Wells [2014] WASAT 112 (S)
Meyer v Solomon [2021] WASCA 168
Office of Local Government v Councillor Genevieve Campbell of Murray Shire Council [2016] NSWCATOD 8
Southwell and Local Government Standards Panel [2019] WASAT 128
Southwell and Local Government Standards Panel [2020] WASAT 6

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The respondent, Mr Michael Southwell, was elected as member of the Shire of Capel (Shire) in October 2017, and as Shire president in October 2019. In broad terms, this proceeding concerns an allegation that at meetings of the Shire Council (Council) held on 8 and 14 January 2020, the respondent moved, respectively, a motion and an amended motion (Motions) in which he had, and did not disclose, an impartiality interest. The applicant contents that, in doing so, the respondent breached a rule of conduct that applied to council members at the time, and that that breach should be penalised as a recurrent breach.
The application is made pursuant to s 5.112(2) of the Local Government Act 1995 (WA) (LG Act). In these reasons, unless otherwise specified, any reference to a legislative provision is a reference to a provision of the LG Act, and any reference to a regulation is a reference to the Local Government (Rules of Conduct) Regulations 2007 (WA) (Conduct Regs).

Issues to be determined

The first issue to be determined is whether, as contended by the applicant, the respondent contravened reg 11(2) and, in determining that matter:
a)whether the respondent had an 'interest' in the Motions, within the meaning of that term in reg 11(2); and if so
b)whether the respondent complied with reg 11(2) in disclosing the nature of that interest.
Secondly, if the respondent contravened reg 11(2), then:
a)does that contravention constitute a 'recurrent breach' of the LG Act; and
b)what, if any, sanction or penalty is appropriate?

Conduct of the proceeding

The proceeding was commenced by an application filed in the Tribunal on 2 March 2021.
At a directions hearing on 15 June 2021, the Tribunal made orders programming the proceeding to a final hearing to be held on 9 September 2021. Prior to the hearing, a further directions hearing was held on 24 August 2021 (when the Tribunal expanded the time allowed to both parties to file witness statements).
Evidence
The parties each filed materials in support of their respective cases and those materials were compiled by the Tribunal into a hearing book which was taken into evidence (Exhibit 1) and included:
a)the application;
b)the applicant's statement of issues, facts and contentions dated 30 June 2021 (Applicant's SIFC);

c)the respondent's statement of issues, facts and contentions dated 30 July 2021 - that document was superseded by an amended statement of issues, facts and contentions sent by email on 8 September 2021, and accepted by the Tribunal on the day of hearing with the consent of the applicant (Respondent's Amended SIFC);
d)the applicant's bundle of documents, including:
i)a writ for defamation action CIV 2460 of 2019 dated 15 August 2019 (Defamation Writ);
ii)minutes of a Special Council Meeting dated 8 January 2020 (First Minutes);
iii)minutes of a Special Council Meeting dated 14 January 2020 (Second Minutes); and
iv)various Local Government Standards Panel (Panel) decisions concerning the respondent made between 25 September 2019 and 4 April 2019;

e)a witness statement of Mr Ian James McCabe dated 31 August 2021; and
f)a witness statement of the respondent dated 31 August 2021 (Respondent's Statement).

At the hearing:
a)the applicant, who was represented, called one witness, Mr McCabe, who was crossexamined by the respondent; and
b)the respondent, who was self-represented, gave oral evidence and was crossexamined by the applicant.
Application for adjournment of the hearing
At the commencement of the hearing, the respondent applied for an adjournment of two to three weeks on the grounds that he:
a)sought to call a witness with (local government) human relations experience to give evidence to the effect that:
… a CEO performance review is – how it's conducted, and the fact that by virtue of the way it's conducted, it is a completely independent process from council, from councillors[;][1]
b)sought to compile and adduce evidence about:
… the number and nature of … complaints that have been made to the standards panel that have been dismissed [which] are indicative of a campaign, if you like, of vexatious complaints[.]
… [and]
[T]here are several matters that were complaints to the tribunal by the witness, Mr McCabe, who was the CEO at the time. So they're the ones that are more relevant than any others in terms of establishing a background to his behaviour in making the complaint[;][2]
c)had, in preparing for the hearing, become convinced that he needed 'some legal advice, or at least some assistance',[3] including about:
i)whether confidentiality provisions relating to complaints would preclude him from leading evidence about complaints made against him that had been dismissed by the Panel;[4] and
ii)the proceeding in the Tribunal constituting a kind of 'double jeopardy' because its subject matter had already been the subject of a Panel decision.[5]
[1] ts 6, 9 September 2021.
[2] ts 5 and 7, 9 September 2021.
[3] ts 5, 9 September 2021.
[4] Relevantly, s 5.123 of the LG Act; see ts 6 and 11-12, 9 September 2021.
[5] ts 5, 9 September 2021.
The application to adjourn the hearing was opposed by the applicant, who noted that:
a)the orders made in June 2021, programming the matter to a final hearing, were made with advertence to the applicant being unrepresented, and allowed him a reasonable opportunity to know, seek advice in relation to, and respond to the case against him. Additionally, there was a further opportunity to consider the need for extra time in the final directions hearing in August 2021, and the hearing date was confirmed on that occasion;
b)the evidence the respondent sought to adduce was irrelevant to the proceeding (and therefore there was no merit in granting an adjournment to allow an opportunity to bring it) because:
i)irrespective of the motives of the original complainant, the Panel ultimately determines whether a complaint is upheld or dismissed, or whether (as in this case) the complaint should be referred to the applicant. Further, the applicant had independently decided that there is a proper basis on which to bring the proceeding in the Tribunal;[6] and
ii)further, the independent conduct of any performance review may be relevant to the propriety of the Motions themselves, but is not relevant to the matter before the Tribunal, which is an allegation about a failure to disclose an 'impartiality interest';
c)finally, there can be no 'double jeopardy' because the Panel did not decide, but instead referred to the applicant, the complaint regarding the respondent's alleged failure to disclose an 'impartiality interest' in the Motions. In support of that contention, the applicant produced, and the Tribunal accepted into evidence (Exhibit 2), a copy of the Local Government Standards Panel decision in complaint number SP2020004A.
[6] ts 8, 9 September 2021.
The application to adjourn the hearing was ultimately refused on the following basis:
a)the applicant agreed that the Tribunal could assume, without finding, that:
i)a number of complaints have been made in respect of the respondent, including by Mr McCabe, which have been dismissed by the Panel; and
ii)a review of the performance of the Shire's Chief Executive Officer (CEO) would be conducted independently of the Council;[7]
[7] Although, as clarified by submissions made by the respondent's support person, the Council must ultimately decide whether or not to adopt any recommendations made by the person undertaking the review.
b)those assumptions:
i)substantially address any prejudice to the respondent in not having a further opportunity to adduce evidence in relation to those matters; and
ii)avoid any need for the respondent to take advice in relation to whether the confidentiality provisions in the LG Act would preclude his evidence in relation to the former matter;
c)I was satisfied that the respondent had had a reasonable opportunity to know, seek advice in relation to, and respond to the case against him;[8]
d)I gave leave to the respondent to have a support person to assist him in the hearing (who, while not admitted to practice, advised that she was legally qualified) and gave him an opportunity to confer with her; and
e)the parties were given leave to file written closing submissions after the hearing.[9]
Agreed facts
[8] I note that: the application was filed in March 2021; the respondent had a copy of the Applicant's SIFC (which has remained unamended) since 30 June 2021; and the orders made on 15 June 2021 gave the respondent a full month to respond to the Applicant's SIFC, which he did (including by his amended SIFC which was accepted without objection). Further, the issues and evidence in contention in the proceeding are confined in nature.
[9] And I note that, given the availability of Exhibit 2, the 'double jeopardy' objections are matters that could properly be dealt with in submissions.
The following facts were agreed between the parties (Agreed Facts):[10]
[10] Respondent's Amended SIFC, page 2; Applicant's SIFC, paras 2-8. The latter is set out below (but with references to the Applicant's Bundle omitted).
…
2.Cr Michael Southwell was elected as a councillor of the Shire in October 2017. On 21 October 2019, Cr Southwell was elected by the councillors of the Shire as President.
3.On 15 August 2019, Cr Southwell commenced defamation proceedings (CIV 2460 of 2019) in the Supreme Court of Western Australia (defamation proceedings) against Mr Ian McCabe, the then Chief Executive Officer of the Shire.
4.On 7 January 2020, Cr Southwell requested a special meeting of Council for the next day, 8 January 2020. Cr Southwell addressed the request to Mr McCabe and stated that the purpose of the special meeting was to 'consider the need for an urgent review of the CEO's performance'.
5.At the special council meeting which commenced on 8 January 2020, Cr Southwell moved the following motion [Motion] under agenda item 4.1 'Urgent Review of CEO Performance':
1.That Council receives the Chief Executive Officer's report as presented.
2.That Council:
a)Initiate as soon as practicable, an urgent review of the CEO Mr Ian McCabe's performance.
b)Engage a suitable independent employment consultant to assist in the conduct of this review.
3.Advise the CEO to undertake only those tasks delegated by statute, and for the sake of clarity instruct the CEO to provide reports to the Council only on matters of fact and refrain from providing unsubstantiated claims and opinion in reports and emails to Councillors.
6.The special council meeting was adjourned and continued on 14 January 2020.
7.On 14 January 2020, Cr Southwell moved the following amended motion [Amended Motion]:
1.That Council receives the Chief Executive Officer's report as presented.
2. That Council:
a)initiate as soon as practicable, an urgent review of the CEO Mr Ian McCabe's performance.
b)appoint Mike Fitzgerald from Fitzgerald Strategies as a consultant to facilitate the CEO employment review and any follow up processes required and authorize unbudgeted expenditure for this review of up to $15,000.
3.Advise the CEO to undertake only those tasks delegated by statute, and for the sake of clarity instruct the CEO to provide reports to the Council only on matters of fact and refrain from providing unsubstantiated claims and opinion in reports and email to Councillors.
8.Cr Southwell did not disclose that the defamation proceedings to which he was a party were on foot prior to discussion of the motion or the amended motion at the special council meeting held on 8 and 14 January 2020.

Did the respondent contravene reg 11(2) of the Conduct Regs?

I note, as a preliminary matter, that by the time of the application[11] the Conduct Regs had been repealed and replaced by the Local Government (Model Code of Conduct) Regulations 2021 (WA).
[11] Specifically, on 3 February 2021, pursuant to Local Government (Model Code of Conduct) Regulations 2021 (WA), reg 4.
However, it was not contentious between the parties, and in any event I find, that the Conduct Regs applied at the time of the respondent's alleged conduct, and therefore the application is properly framed and determined by reference to whether there has been breach of the Conduct Regs.[12]
[12] Interpretation Act 1984 (WA), s 37(1)(b).
Relevantly, reg 11 provides:
(1)In this regulation
interest means an interest that could, or could reasonably be perceived to, adversely affect the impartiality of the person having the interest and includes an interest arising from kinship, friendship or membership of an association.
(2)A person who is a council member and who has an interest in any matter to be discussed at a council or committee meeting attended by the member must disclose the nature of the interest
(a)in a written notice given to the CEO before the meeting;
or
(b)at the meeting immediately before the matter is discussed.
(3)Subregulation (2) does not apply to an interest referred to in section 5.60 of the Act.
(4)Subregulation (2) does not apply if
(a)a person who is a council member fails to disclose an interest because the person did not know he or she had an interest in the matter; or
(b)a person who is a council member fails to disclose an interest because the person did not know the matter in which he or she had an interest would be discussed at the meeting and the person disclosed the interest as soon as possible after the discussion began.
I note for clarity that references in the Conduct Regs to 'the CEO' are references to the CEO of the relevant council; they do not refer to the applicant (who is the 'Departmental CEO'[13] under the LG Act).
[13] Defined by s 1.4 of the LG Act as the chief executive officer of the department of the Public Service assisting the Minister to administer LG Act.
I note also that, in deciding whether a breach has occurred, my finding must 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.[14]
[14] LG Act, s 5.106.
It is an Agreed Fact that the respondent commenced proceedings (Defamation Proceedings) against Mr McCabe, the CEO of the Shire at the time, by filing the Defamation Writ in the Supreme Court in August 2019.
The indorsement of claim in the Defamation Writ is to the effect that:
a)on 30 July 2019, Mr McCabe published (to officers of the Shire and of the Department of Local Government and Communities) a document entitled 'complaint of minor breach form' which attached inter alia an email 'of and concerning' the respondent; and
b)by reason of that publication, the respondent had been injured in his personal and professional reputation, and had suffered substantial damage and distress.
The applicant contended that:
a)the respondent had an 'interest' for the purposes of reg 11(1) because he had legal proceedings on foot against Mr McCabe in which he claimed that Mr McCabe had published defamatory words against him and that, as a result, the respondent's personal and professional reputation had been injured, and he had suffered substantial damage and distress;
b)a fair-minded observer might reasonably apprehend that the respondent may not bring an impartial mind to the merits of the Motions because of the nature and current status of the Defamation Proceedings;
c)accordingly, the respondent had an obligation under reg 11(2) to disclose the existence and status of the Defamation Proceedings at or before the special Council meetings held on 8 January 2020 and 14 January 2020 (Special Meetings).
The respondent contended that:
a)he did not have an 'interest' for the purpose of reg 11(1) because:
i)the deliberations at the Special Meetings did not involve any questions or consideration of the CEO's performance per se (but rather the need to review it);
ii)the CEO's performance review, if undertaken, would be conducted independently of Council and he would not be in a position to influence its conduct or recommendations;
iii)he did not stand to benefit from the conduct or outcome of the CEO's performance review, if undertaken;
iv)any association he had with the CEO was not an association for the purposes of reg 11(1);
v)in moving the Motions, he was simply asking the Council to consider whether a performance review was needed, being part of his statutory obligation to ensure that legislative and contractual requirements[15] were met; and
[15] That the performance of the CEO be periodically reviewed.
vi)it is standard to restrict the CEO's functions during any period of review;
b)even if he is found to have had an interest in fact, he was not required to make any disclosure of it under reg 11(2) because:
i)he did not know that he had such an interest and therefore, by reason of reg 11(4), reg 11(2) does not apply;
ii)councillors are volunteers and rely on the advice of CEOs in relation to procedural matters. In this case, the respondent sought the advice of the CEO. The CEO and the respondent had agreed that they would keep the Defamation Proceedings private and confidential between them and would not discuss the dispute or let it interfere with their work or roles in the Council;
iii)in any event, the CEO, as the defendant in the Defamation Proceedings, had necessarily been given notice of the proceedings (and knew that the respondent was the plaintiff);
c)finally, the applicant is required to act as a model litigant and:
i)as such, the applicant should have drawn, and failed to draw, the Tribunal's attention to a history of the CEO lodging multiple complaints against the respondent. Accordingly, the Tribunal should place little weight on the evidence of the CEO;[16] and
ii)the CEO had conflicts of interest in making the complaint to the Panel. The applicant should not have referred the matter to the Tribunal because it should have concluded that the underlying complaint was 'personality driven and was made to extract an advantage' for the CEO.[17]
Did the respondent have a relevant 'interest' in the Motions?
[16] Respondent's Closing Submissions, paragraph 147.
[17] Respondent's Further Closing Submissions, paragraph 11.

I find that:
a)for the purposes of reg 11(1)(a), each of the Motions was a 'matter to be discussed' at the each of the respective Special Meetings;
b)assessed objectively, the respondent's interest in the Defamation Proceedings could, or could reasonably be perceived to, adversely affect the impartiality of the respondent in relation to those matters; and
c)accordingly, the respondent had an obligation under reg 11(2) to disclose the interest at or before each of the Special Meetings at which the Motions were to be discussed.
I do not accept the respondent's contentions at [21](a) above because:
a)As recently noted by the Court of Appeal in relation to construing legislative instruments:
The focus of statutory construction is upon the text of the provisions having regard to their context and apparent purpose.
A decision as to the meaning of the text requires consideration of the context, in its widest sense, including the general purpose and policy of the provision.
The context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed.[18]
[18] Meyer v Solomon [2021] WASCA 168, [76]-[78] (citations omitted).
b) Construed in context, the threshold for whether and when a person has an interest in a matter for the purposes of reg 11(1) is low. That is reflected in:
i)the very broad and inclusive language used in the definition of interest in reg 11(1);
ii)the express distinction between an interest under reg 11(1) and an interest under s 5.60 of the LG Act (the latter defined to be a direct or indirect financial interest, or a proximity interest,[19] held by member or a person with whom the member is closely associated); and
[19] Which is in turn defined in s 5.60B of the Act to be an interest in land that may be affected by a local government decision regarding a planning scheme, zoning or use, or a development pertaining to any adjoining land.
iii)the consequences flowing from having such an interest being limited to disclosure of the interest under reg 11(2), rather than the member being precluded from any discussion of the matter (as is the case for interests falling under s 5.60 of the LG Act).
c)The express language of the definition includes (but is not limited to) an interest arising from kinship or friendship. It is clear, therefore that relational interests are contemplated within reg 11(1).
d)Further, it is clear that the test is objective. The regulation directs attention to whether a matter 'could, or could be perceived to' affect the impartiality of a councillor. It is not in terms that an interest arises when it is perceived (by the councillor in question) to affect or potentially affect impartiality.
e)For those reasons, I that agree with the view expressed in Corr and Local Government Standards Panel[20] that an interest arises from objective or constructive circumstances, not from the subjective knowledge of the particular councillor in question (although I observe that, while the reasoning in Corr refers to conflicts of interest, an 'interest' under reg 11(1)[21] is not expressly limited to or by that term).
[20] [2014] WASAT 86 (Corr) at [24]: 'However, in my view, the standard required in conflict of interest matters is generally an objective standard - one that can be satisfied without the need for proof that Councillor Corr had any direct, conscious or actual knowledge of the relevant conflict. The conflict arises from objective or constructive circumstances, not from the subjective knowledge of the particular Councillor'.
[21] An interest falling within reg 11(1) is sometimes referred (including by the applicant) as an 'impartiality interest', reflecting the language of the definition. As noted above, such interests are expressly distinguished from the more obviously conflicting interests contemplated by s 5.60 of the LG Act.
e)It is consistent with the language of the definition that an interest may arise from a conflictual relationship (as well as from a relationship of affection). Whether it does arise in any particular case will depend on the facts and circumstances giving rise to the relationship in question, and the connection between those circumstances and the matter to be discussed in council deliberations.
f)In this case, I do not regard as plausible the contention that the Motions were put 'simply' to fulfil contractual and legislative performance review requirements. The language of the Motions is instructive.
i)Neither Motion makes reference to legislative or contractual requirements, or the passage of time since the CEO's previous performance review.
ii)The absence of any such reference is telling in circumstances where the language of the Motions is not 'bare' (that is, lacking any detail).
iii)Rather, Council is asked in both Motions to consider 'as soon as practicable, an urgent review' of the CEO's performance and to advise the CEO to 'refrain from providing unsubstantiated claims and opinion in reports and emails to Councillors'.
g)In any event, the motives of the respondent in introducing the Motions are not determinative. The question is whether there was a sufficiently close connection, objectively assessed, between the dispute between the respondent and the CEO and a matter to be discussed by Council, such as to be perceived capable of affecting the respondent’s impartiality in those discussions.
h)The proposal to direct the CEO to 'refrain from providing unsubstantiated claims and opinion in reports and emails to Councillors' (the content of which was a matter to be discussed by Council) is of particular relevance in the context of the Defamation Proceedings.
i)There was a conflictual relationship between the respondent and the CEO, with proximity between the timing of, nature of, and circumstances giving rise to the Defamation Proceedings and the subject matter of the Motions (particularly regarding the proposed direction to the CEO).
j)Those circumstances, I am satisfied, could or could reasonably be perceived to adversely affect the impartiality of the respondent in discussing the Motions.
Was disclosure excused and, if not, was it made?
I do not accept the respondent's contentions at [21](b) above for the reasons that follow.
First, I do not accept that the respondent did not know of the conflict and was therefore, by reason of reg 11(4), not required to make any disclosure under reg 11(2). In that regard:
a)As noted above, the existence of an interest attracting the obligation to disclose is objectively assessed from the circumstances. In my view, it follows that reg 11(4) does not apply when the councillor in question has subjective knowledge of those circumstances.

b)If reg 11(4) were construed to exclude reg 11(2) when a councillor does not subjectively consider that they have an interest in a matter, it would render the objective test of interest in reg 11(1) largely redundant.
c)In this case, the respondent was not only called upon to participate in Council discussions about the Motions; he authored and introduced them. He clearly therefore knew in precise terms the nature of the proposals and the discussions to be had. He also knew of the nature of and circumstances giving rise to the Defamation Proceedings. In those circumstances, reg 11(4) does not apply.

Second, the obligation of disclosure under reg 11(2), once it applies, is personal and strict. That character is apparent in the express terms of the regulation, and informed by the general principles and standards identified in reg 3 (General Principles).[22] It follows that:
a)Even if I accept the respondent’s contention (which Mc McCabe denies), that the CEO advised and agreed with the respondent to keep the dispute between them confidential from the Council, or to 'put it to one side',[23] that agreement would not operate to exclude the operation of reg 11(2). The strict character of the obligation reflects the public interest in disclosure, and no private agreement can properly exclude its operation.
b)Further, even if, for confidentiality reasons (including by agreement), the details of the matters giving rise to an interest may not be disclosed, the fact and nature of the interest must be.
c)Similarly, the CEO having knowledge of the Defamation Proceedings is no answer because:
i)the obligation required the respondent to make disclosure to the CEO in his (the CEO’s) official capacity rather than his personal capacity (with the clear intention being that the disclosure be noted before any discussion of the relevant matters by Council); and
ii)more importantly, the obligation is personal in character, requiring councillors to identify and disclose their own interests. It would be inconsistent with the terms of reg 11(2) and with the General Principles to excuse a councillor from personal disclosure and to rely instead on others (including a CEO) to recognise and respond to an impartiality interest, merely because those others are also invested with knowledge of the underlying circumstances.
[22] Being that a person in his or her capacity as a council member should act with reasonable care and diligence, act with honesty and integrity, act lawfully, be open and accountable to the public, base decisions on relevant and factually correct information, treat others with respect and fairness, and not be impaired by mind affecting substances.
[23] ts 42, 9 September 2021.
As to whether disclosure of the respondent’s interest was made, it is not contentious between the parties, and I find, that the respondent did not disclose, in accordance with reg 11(2), any interest in connection with the Motions.
It follows from [22] and [27] above that I find, on the basis that it is more likely than not, that the respondent contravened reg 11(2).
Finally, with reference to the respondent's contention at [21](c) above, I note (without commenting on the merit of that submission) that each of the findings at [22] and [27] above is available on the Agreed Facts and documents filed with the Tribunal, and accordingly:
a)those findings are supported whether or not any weight is given to the evidence of the CEO; and
b)whatever the motives of the CEO in first making the complaint to the Panel, the respondent cannot complain that there was not a proper basis on which the applicant could form the view that it was appropriate to refer the matter to the Tribunal.[24] I do not accept the respondent's contention that the applicant ought not to have referred the matter to the Tribunal (in his role as a model litigant or otherwise).

What, if any, sanction is appropriate?

[24] LG Act, s 5.112.

The respondent's contravention (as a council member) of reg 11(2), being a rule of conduct, is a 'minor breach' of the LG Act[25] (Breach).
[25] LG Act, s 9 and s 5.105(1)(a).
Pursuant to s 5.105(2) of the LG Act, a minor breach is a 'recurrent breach' if it occurs after the council member has been found (under Pt 5 Div 9 of the LG Act) to have committed two or more other minor breaches.
If I am satisfied that the Breach is a recurrent breach, I may:[26]
[26] LG Act, s 5.113.
(a)order that
(i)the person against whom the allegation was made be publicly censured as specified in the order; or
(ii)the person against whom the allegation was made apologise publicly as specified in the order; or
(iii)the person against whom the allegation was made undertake training as specified in the order; or
(iv)the person against whom the allegation was made is suspended for a period of not more than 6 months specified in the order; or
(v)the person against whom the allegation was made is, for a period of not more than 5 years specified in the order, disqualified from holding office as a member of a council;
or
(b)order 2 or more of the sanctions described in paragraph (a).[27]
Is the breach a 'recurrent breach'?
[27] LG Act, s 5.117(1).
As appears from Southwell and Local Government Standards Panel [2020] WASAT 6 and Southwell and Local Government Standards Panel [2019] WASAT 128, the Tribunal has affirmed decisions of the Panel in relation to twelve previous minor breaches by the respondent.[28]
[28] Being two contraventions of reg 6(2)(b) (relating to the disclosure of information acquired at a closed meeting) and ten contraventions of reg 7(1)(b) (relating to making improper use of his office as a Council member to cause detriment to others).
There can be no doubt, therefore, that by reason of s 5.105(2) of the LG Act, the Breach is a recurrent breach.
As noted above, I accept (without finding) that a number of other complaints have been made (including by Mr McCabe) about the respondent to, and have been dismissed by, the Panel. That is not, however, material to the characterisation of the Breach as a recurrent breach.
Sanction
The language of s 5.113 of the LG Act makes it clear that the imposition of a sanction involves the exercise of discretion.
Factors relevant to the exercise of that discretion include the following inexhaustive and interrelated considerations:[29]
[29] Chief Executive Officer, Department of Local Government and Communities and Scaffidi [2017] WASAT 67 (S) (Scaffidi) at [75] (citing Legal Profession Complaints Committee and Wells [2014] WASAT 112 (S) and Office of Local Government v Councillor Genevieve Campbell of Murray Shire Council [2016] NSWCATOD 8; specific citations omitted).
1)The nature and seriousness of the conduct including:
a)the number of breaches and the period over which they occurred such that the Tribunal can assess the councillor's worthiness or reliability for the future
b)the councillor's motivation for the contraventions;
c)whether the contravention was or contraventions were, or should have been, obvious to the councillor in question and any steps the councillor took to avoid contravention of the pecuniary provisions of the LG Act;
d)whether the councillor has breached the LG Act knowingly or carelessly; and
2)Any need to protect the public against further misconduct by the councillor including:
a)the councillor's disciplinary history;
b)any genuine apology or expression of remorse by the councillor;
c)whether or not the councillor understands the error of her or his ways, including an assessment of any remorse and insight (or a lack thereof) shown by the councillor, particularly any subsequent conduct, since a councillor who fails to understand the significant consequences of misconduct is a risk to the community;
3)The need to protect the public through general deterrence of other councillors from similar conduct and thus to maintain expected standards of conduct of councillors;
4)The need to protect the public and maintain public confidence in local government councillors by vindicating the public intent in maintaining the honesty and integrity of local government councillors and denouncing transgressions, even where there may be no need to deter a councillor from repeating the conduct, but the conduct is of such a nature that the Tribunal should give an emphatic indication of its disapproval;
5)Whether the conduct is such that a suitable penalty 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.
6)The Tribunal may 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, mitigating factors such as no previous misconduct or service in the office are of considerably less significance than in the criminal process because the jurisdiction is protective, not punitive.
The applicant contends (in summary) that:
a)the respondent's lack of insight and remorse are particularly relevant. Notably, he seeks to minimise his own responsibility and blame others for his conduct;
b)as to disciplinary history, the applicant has committed twelve prior minor breaches (which is notable in the context of a recurrent breach requiring only two previous minor breaches); and
c)previous sanctions imposed on the respondent have not resulted in him modifying his behaviour, and so the Tribunal should conclude that a sanction of public censure and/or apology is unlikely to be sufficiently strong to deter future breaches, and a suspension is a more appropriate penalty.
The respondent contends (in summary) that:
a)he has been the subject of a barrage of complaints, many of which have been dismissed by the Panel;
b)to the extent that twelve complaints have been sustained, many were sustained 'for trivial, technical breaches';[30]
c)it is not his behaviour which is repetitive, but rather 'the lodging of vexatious and spurious complaints to the panel as part of a campaign of harassment by former councillors and others';[31]
d)it is incorrect to say that previous penalties have failed to deter the respondent from further breaches because the respondent has not committed any further breach of the regulations the subject of previous sanctions; and
e)the respondent notes that a former Shire President who was found to have failed to declare financial interests was sanctioned with a letter of caution.
[30] Respondent's Amended SIFC, para 24.
[31] Respondent's Amended SIFC, para 27.
While I note the above submissions, I also note that:
a)at the time of the hearing (and the filing of the parties' closing submissions) the respondent was still serving as President of the Shire;
b)the hearing concluded around a month before the local government elections;
c)in his written submissions, the respondent indicated that he would not stand for re-election; and
d)the local government elections now having been held, the question of sanction is more properly addressed taking into account the respondent's present circumstances.
Accordingly, I will hear the parties further on this issue.

Orders

The Tribunal orders that:
1.The respondent has, by contravening reg 11(2) of the Local Government (Rules of Conduct) Regulations 2007 (WA), committed a minor breach ('Breach') within the meaning of s 5.105(1) of the Local Government Act 1995 (WA) ('the Act').
2.Being satisfied that the respondent has been found to have committed more than two previous minor breaches, the Breach constitutes a recurrent breach within the meaning of s 5.105(2) of the Act.
3.The proceeding is adjourned to a further hearing at 10 am on 15 December 2021 for the parties to address the Tribunal on what order or orders, if any, it should make under s 5.117 of the Act.

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

DR B MCGIVERN, MEMBER

1 DECEMBER 2021

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION:   CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF LOCAL GOVERNMENT, SPORT AND CULTURAL INDUSTRIES and SOUTHWELL [2021] WASAT 153 (S)
MEMBER:   DR B MCGIVERN, MEMBER
HEARD:   15 DECEMBER 2021
DELIVERED          :   4 JANUARY 2022
FILE NO/S:   DR 34 of 2021
BETWEEN:   CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF LOCAL GOVERNMENT, SPORT AND CULTURAL INDUSTRIES
Applicant
AND
MICHAEL SOUTHWELL
Respondent