Hargreaves and Local Government Standards Panel

Case •

[2008] WASAT 300

•

17 DECEMBER 2008

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT:   LOCAL GOVERNMENT ACT 1995 (WA)

CITATION:   HARGREAVES and LOCAL GOVERNMENT STANDARDS PANEL [2008] WASAT 300

MEMBER:   JUDGE J CHANEY (DEPUTY PRESIDENT)

HEARD:   10 DECEMBER 2008

DELIVERED          :   17 DECEMBER 2008

FILE NO/S:   DR 296 of 2008

BETWEEN:   TIMOTHY WYNN HARGREAVES

Applicant

AND

LOCAL GOVERNMENT STANDARDS PANEL
Respondent

ATTORNEY GENERAL OF WESTERN AUSTRALIA
Intervenor

Catchwords:

Local government ­ Rules of conduct ­ Offensive or objectionable expression in relation to local government employee ­ Allegation that ratepayer claims health inspector derelict in his duties ­ Whether breach of rules of conduct ­ 
Words and phrases: 'offensive', 'dereliction of duties', 'derelict'

Legislation:

Local Government (Rules of Conduct) Regulations 2007 (WA), reg 10(3)(b)
Local Government Act 1995 (WA), s 5.104, s 5.105, s 5.107, s 5.110, s 5.122, s 5.125
State Administrative Tribunal Act 2004 (WA), s 24, s 30

Result:

Decision of Standards Panel upheld

Category:    B

Representation:

Counsel:

Applicant:     Self-represented

Respondent:     Mr C Bydder

Intervenor:     Mr C Bydder

Solicitors:

Applicant:     Self-represented

Respondent:     State Solicitor's Office

Intervenor:     State Solicitor's Office

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

  1. Councillor Timothy Hargreaves sought a review of a finding of the Local Government Standards Panel that he had breached the local government rules of conduct by stating at a meeting of the Council of the Shire of Shark Bay that a ratepayer claimed that the Shire's health inspector had been derelict in his duties.

  2. The Tribunal considered whether the words used were properly categorised as offensive or objectionable, and thus breached the rules.  It determined that the words were offensive, and that the decision of the Standards Panel to require an apology should be confirmed.

The application

  1. Mr Timothy Wynn Hargreaves is a member of the Council of the Local Government of the Shire of Shark Bay (Shire).  He was elected as a Council member on 20 October 2007 for a four-year term.  On 23 April 2008, a Local Government Standards Panel (the Standards Panel) established under s 5.122 of the Local Government Act 1995 (WA) (LG Act) found that Councillor Hargreaves had committed a breach of reg 10(3)(b) of the Local Government (Rules of Conduct) Regulations 2007 (WA). Mr Hargreaves commenced these proceedings pursuant to s 5.125 of the LG Act for a review of that decision of the Standards Panel.

  2. In accordance with its obligation under s 30 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the Standards Panel assisted the Tribunal by identifying the issues which it considered fell for consideration by the Tribunal, and by providing a bundle of relevant documents pursuant to s 24 of the SAT Act. Appropriately, the Standards Panel did not seek to make submissions as to the appropriate disposition of the application for review. However, the Attorney General for Western Australia intervened in the proceedings in order to make submissions supporting the decision of the Standards Panel.

  3. The finding of the Standards Panel related to words used by Cr Hargreaves at a meeting of the Shark Bay Shire Council on 19 December 2007.  The Standards Panel concluded that, while acting as a councillor, Cr Hargreaves had, in the presence of members of the public, used an offensive or objectionable expression in reference to a Shire employee.

  4. The issues which arise on the review are:

    (i)were the words used by Cr Hargreaves offensive or objectionable, and

    (ii)if so, how should the Tribunal deal with the matter.

Relevant Local Government Act provisions

  1. Section 5.104 of the LG Act provides for regulations to prescribe rules, known as Rules of Conduct, that Council members are required to observe.  The Local Government (Rules of Conduct) Regulations 2007 (WA) (Rules of Conduct) are made pursuant to that power.

  2. Regulation 10(3) of the Rules of Conduct provide that:

    If a person, in his or her capacity as a council member, is attending a council meeting, committee meeting or other organised event and members of the public are present, the person must not, either orally, in writing or by any other means -

    (a)make a statement that a local government employee is incompetent or dishonest; or

    (b)use offensive or objectionable expressions in reference to a local government employee.

  3. Section 5.105 of the LG Act provides that a council member commits a minor breach if he or she contravenes a Rule of Conduct made under s 5.104.  Section 5.107 provides for the reference of a complaint of commission of a minor breach to a member of the Primary Standards Panel established under the LG Act.  Section 5.110 provides that the member of the Primary Standards Panel must allocate a complaint to a Standards Panel which is then required to make a finding as to whether or not the breach alleged in the complaint occurred.  In this case, a number of other councillors of the Shire complained that Cr Hargreaves had committed a minor breach, being a breach of reg 10(3) of the Rules of Conduct.

  4. The way that the Standards Panel (and in turn this Tribunal on review) is to deal with a minor breach which it finds to have been committed is dealt with by s 5.110(6) of the LG Act.  That section provides:

    (6)The breach is to be dealt with by -

    (a)      dismissing the complaint;

    (b)      ordering that -

    (i)the person against whom the complaint was made be publicly censured as specified in the order;

    (ii)the person against whom the complaint was made apologise publicly as specified in the order; or

    (iii)the person against whom the complaint was made undertake training as specified in the order;

    or

(c)ordering 2 or more of the sanctions described in paragraph (b).

The words used

  1. It is not in dispute that Cr Hargreaves was, on 19 December 2007, attending a Council meeting in his capacity as a Council member.  Nor is it in dispute that members of the public were present at that meeting.  The prerequisites for the operation of the prohibition found in reg 10(3) are therefore established. 

  2. The Standards Panel, having reviewed the materials before it, and the submissions made to it by Cr Hargreaves, made a finding that, at that Council meeting, Cr Hargreaves said either 'the health inspector is derelict in his duties' or 'Mr Egan claims that the health inspector is derelict in his duties'.  It concluded that either of those statements amounted to a breach of reg 10(3).  The reason for the uncertainty as to precisely what was said arises by reason of a conflict between the words Cr Hargreaves said he used and what is recorded and in the minutes of the meeting.

  3. The minutes record that Cr Hargreaves 'stated that the health inspector (manager regulatory services) had been derelict in his duties'.  Each of the complainants relied upon the minuted statement as the basis of his or her complaint. 

  4. On the other hand, in Cr Hargreaves' response to the Standards Panel, he said, in effect, that he attributed the allegation of dereliction of duties to a Mr Egan, a resident of the Shire who had complained to Cr Hargreaves of inaction by the Shire in relation to a particular health issue arising from the activities of Mr Egan's neighbour. 

  5. At the hearing before this Tribunal, Cr Hargreaves re‑asserted that he made the statement 'Mr Egan claims that the health inspector has been derelict in his duties'.  In addition, Cr Hargreaves adduced evidence from another councillor, Cr Cowell, and a resident of the Shire, Mr Raven.  Both were present at the meeting on 19 December, and Mr Raven had some sketchy notes of proceedings at the meeting.  Both of those witnesses gave evidence that they recall Cr Hargreaves attributing the comment to Mr Egan, thus supporting Cr Hargreaves' version of events.

  6. It is apparent that the section of the minutes of the meeting of 19 December 2007 dealing with this issue are a relatively brief summary of what occurred.  That is not a criticism of the minutes which obviously do not purport to be a verbatim account of all that was said.  It is clear from the minutes that the reference to the health inspector was said in the context of Cr Hargreaves raising the issue which Mr Egan had requested he bring to Council.  That context tends to support Cr Hargreaves' version of the precise words used.  Cr Hargreaves' own evidence at the Tribunal and that of Cr Cowell and Mr Raven also support that conclusion.  Accordingly, I find that the words used by Cr Hargreaves at the meeting were 'Mr Egan claims that the health inspector has been derelict in his duties', or words substantially to that effect. 

Did the words breach reg 10(3)?

  1. Regulation 10 is headed 'Relations with local government employees'.  I accept the submissions of counsel for the Attorney General of Western Australia that reg 10(3) is designed to ensure that councillors do not use their position to publicly criticise employees within their local government.  It is predicated on the proposition that concerns about the performance of employees should be dealt with within the local government organisation and through proper channels, rather than aired publicly in a council or committee meeting. 

  2. In my view, to accuse someone of dereliction of duty is to use an offensive expression.  I was taken to definitions of 'offensive' in the Oxford English Dictionary online, in which it is defined as 'giving, or liable to give, offence; displeasing; annoying; insulting', and the Macquarie Dictionary, where it is defined as 'causing offence or displeasure; irritating … and insulting'.

  3. The Oxford English Dictionary online defines dereliction as 'implying a morally wrong or reprehensible abandonment or neglect; chiefly in the phrase dereliction of duty'.  The Macquarie Dictionary defines dereliction as 'culpable neglect, as of duty'.  Cr Hargreaves argued that derelict, or dereliction, does not impute anything reprehensible or culpable.  I do not accept that submission.  While the same words are used in relation to forsaken or abandoned ships or other objects, the expression 'dereliction of duty' carries with it, in my view, notions of blameworthy conduct.

  4. It follows that, in my view, to accuse some person of dereliction of duty is likely to cause offence or displeasure and is insulting.  It is an offensive expression within the meaning of reg 10(3). 

  5. The proscription in reg 10(3) is against using offensive expression in reference to a local government employee.  It is therefore not an answer to an allegation of breach of that regulation to say that the councillor concerned was merely reporting another person's offensive expression.  The prohibition applies regardless of the original source of the offensive expression.  The statement made by Cr Hargreaves that Mr Egan claims that the health inspector has been derelict in his duties amounts, in my view, to the use of an expression in reference to the health inspector which was offensive.

  6. I therefore conclude that the Standards Panel was correct in finding that, by using those words, Mr Hargreaves breached reg 10(3) of the Rules of Conduct.

Appropriate disposition

  1. The Standards Panel, having found that Cr Hargreaves had committed a minor breach, made an order that he apologise to the health inspector, Mr McKechnie.  The advertisement was to be published in the 'public notices' or 'local government public notices' section of the Saturday edition of 'The West Australian' newspaper in no less than 10-point print, in the following terms:

    Notice of Public Apology

    I, Timothy Wynn Hargreaves, am a member of the Council of the Shire of Shark Bay.  The Local Government Standards Panel has made a finding that at the Ordinary Council Meeting held on 19 December 2007 I committed a breach of regulation 10(3)(b) of the Local Government (Rules of Conduct) Regulations 2007 by using an offensive or objectionable expression in reference to Mr JIM McKECHNIE, a Shire employee. 

    I sincerely apologise to Mr McKechnie for using the offensive or objectionable expression and for any embarrassment or distress that it caused to him.

    TIM HARGREAVES

  2. Materials provided to the Tribunal, both through the Standards Panel, and from Cr Hargreaves, demonstrate that there is an unfortunate division within the Council of the Shire.  The five complainant councillors appear to be on one side of that divide, and Cr Hargreaves and Cr Cowell appear to be on the other side.  I was informed that there have been a large number of complaints emanating from this Shire to the Standards Panel since the new provisions dealing with breaches of conduct rules by councillors were introduced into the LG Act in November 2007.  There is obviously a complete lack of effective communication between Cr Hargreaves and the Chief Executive Officer and the President of the Shire, and certain other councillors.  The Tribunal is not in a position to assess the reasons for that breakdown of communication or where the fault for it lies. 

  3. I am satisfied that Cr Hargreaves' intention was to bring to the attention of the Council concerns that had been expressed to him by a ratepayer.  I accept that words which he chose to use were intended to paraphrase the rather more colourful language that had been used by the ratepayer to convey his concerns to Cr Hargreaves.  That Cr Hargreaves chose to use an offensive expression in relation to the health inspector in the context of raising the concerns is probably attributable to his relative inexperience as a councillor as at December 2007.  In his response to the Standards Panel, Cr Hargreaves said that, immediately he made the comment about the health inspector, the Shire President, who was chairing the meeting, demanded that the minutes clerk record the comment in the minutes. 

  4. In a proper functioning council, it might be expected that reasoned discussion might lead to an immediate withdrawal of an offensive comment and an appropriate retraction or apology being proffered.  The obvious adversarial approach taken in relation to this issue is unfortunate.  The fact of a division between councillors does not, however, justify a breach of the Rules of Conduct in relation to an employee of the local government.  Even if a criticism of a local government employee were to have some justification, the purpose of the rules is to ensure that that criticism is not dealt with by publicly denigrating the employee.  Where that occurs, it is appropriate that the breach be remedied by a public apology. 

  5. Cr Hargreaves opposed the requirement for a public apology on the basis that he was simply endeavouring to provide proper representation of his constituents and to address criticisms which he has of the operations of the Shire over a period of years.  He considers the requirement that he apologise will merely serve to deepen the divide in the community, and on the Council, which is detrimental to the good government of the Shire. 

  6. In my view, an apology is appropriate.  If, as Cr Hargreaves contends, he did not intend to be offensive to the health inspector, then an apology for any offence unintentionally caused is a very reasonable step to take.  An apology should serve to put the matter behind all concerned, so that they can focus on the constructive and proper government of the Shire.  In my view, the Standards Panel was correct in imposing the requirement which it did.

Conclusion

  1. It follows that I would affirm the decision of the Standards Panel.  The order required publication of the apology within 28 days of service of the order, which time has now elapsed by reason of the institution of this application for review.  Accordingly, it is appropriate that the order of the Standards Panel be varied so that it requires publication of the apology as specified by the Standards Panel within 28 days of the publication of these reasons.

Orders

1.The order of the Local Government Standards Panel of 18 July 2008 is affirmed save that time for publication of the notice of public apology is varied so as to require publication within 28 days of the date of this order.

I certify that this and the preceding [29] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

JUDGE J CHANEY, DEPUTY PRESIDENT

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