CORR and LOCAL GOVERNMENT STANDARDS PANEL - [2014] WASAT 86

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: LOCAL GOVERNMENT ACT 1995 (WA)

CITATION: CORR and LOCAL GOVERNMENT STANDARDS PANEL [2014] WASAT 86

MEMBER: MR P McNAB (SENIOR MEMBER)

HEARD: 20 MARCH 2014

DELIVERED : 7 APRIL 2014

PUBLISHED : 7 JULY 2014

FILE NO/S: DR 242 of 2013

BETWEEN: BRIAN THOMAS CORR
Applicant
AND
LOCAL GOVERNMENT STANDARDS PANEL
Respondent

Catchwords:

Local government Regulation of councillors Local Government Standards Panel Rules of Conduct Minor breach - Impartiality disclosure - Conflict of interest - Councillor an executive member of an incorporated local business association - Item before Council in officers' report in Council agenda papers impacting on financial affairs of business association - Failure to declare interest - Councillor yet to attend first executive meeting of business association - Councillor had no actual knowledge of financial matters set out in officers' report in Council agenda papers - Councillor failed to sufficiently acquaint himself with Council agenda papers - Whether actual knowledge of potential conflict of interest required - Tribunal holding constructive knowledge is sufficient - State of actual knowledge may be relevant for purposes of any sanction - Tribunal deciding that responsibilities of Councillor in relation to membership of the executive of the association in effect run from time of appointment - Duty on Councillor to read agenda papers - Minor breach of rules of conduct decision of Local Government Standards Panel upheld - Sanction of Local Government Standards Panel varied by imposition of public apology to be given at Council meeting in lieu of public censure to be published in newspaper - Words and Phrases: 'interest'; 'conflict of interest'

Legislation:

Local Government (Rules of Conduct) Regulations 2007 (WA), reg 11
Local Government Act 1995 (WA), s 5.60, s 5.105(1)(a), s 5.110(6), s 5.110(6)(b)(i), s 5.110(6)(b)(ii)

Result:

Application for review successful in part; minor breach confirmed and sanction varied

Summary of Tribunal's decision:

Councillor Brian Corr is an elected Councillor of the City of Joondalup. He was also appointed or elected to the executive committee of an incorporated local business organisation and formally took office in that body by attending an executive meeting in December 2012. Prior to that date he had been a nonexecutive member of this organisation.
On 20 November 2012, an item of Council business dealt with a significant financial matter relating to the business affairs of the organisation. Councillor Corr participated in the debate but did not declare any interest in the item before Council. Any interest would be one arising out of his association with the organisation.
The Rules of Conduct applicable to Councillors required Councillor Corr to declare any interest that could, or could reasonably be perceived to, adversely affect his impartiality in decision-making on Council. Under the Rules of Conduct an interest could include membership of an association.
It was clear that Councillor Corr did not have direct knowledge of the matters to be discussed at Council. Although the item was set out in the Council's agenda papers,…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2014] WASAT 86
Decision Date: 7 JULY 2014

CaseChat Overview and Summary

The case of CORR and Local Government Standards Panel involved a dispute regarding the conduct of a local government councillor who was a member of the executive of an incorporated local business association. The Local Government Standards Panel found that the councillor had breached the rules of conduct by failing to disclose a potential conflict of interest. The councillor was yet to attend the first executive meeting of the business association and had no actual knowledge of the financial matters that were the subject of an item before the council. However, the councillor had not sufficiently familiarised themselves with the council agenda papers, which included the officers' report on the matter impacting the financial affairs of the business association. The primary legal issue before the court was whether the councillor needed actual knowledge of a potential conflict of interest, or if constructive knowledge was sufficient. The Tribunal had held that constructive knowledge was sufficient to establish a breach, while actual knowledge may be relevant for any sanction imposed.

The court considered the responsibilities of the councillor in relation to their membership in the executive of the association, which effectively began at the time of their appointment. The court also examined the duty of the councillor to read the council agenda papers, which contained the officers' report in question. The court found that the Local Government Standards Panel's decision that there had been a minor breach of the rules of conduct was upheld. However, the sanction imposed by the Panel was varied. Instead of the public censure to be published in a newspaper, the court ordered that the councillor should give a public apology at a council meeting. This decision recognised the importance of transparency and accountability in local government and the need for councillors to avoid even the appearance of a conflict of interest.

Orders