Hipkins and Local Government Standards Panel
[2014] WASAT 48
•28 JANUARY 2014
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: LOCAL GOVERNMENT (RULES OF CONDUCT) REGULATIONS 2007 (WA)
CITATION: HIPKINS and LOCAL GOVERNMENT STANDARDS PANEL [2014] WASAT 48
MEMBER: MR P McNAB (SENIOR MEMBER)
HEARD: 26 SEPTEMBER 2013
DELIVERED : 28 JANUARY 2014
PUBLISHED : 22 APRIL 2014
FILE NO/S: DR 161 of 2013
BETWEEN: RICHARD MAXWELL COLLIER HIPKINS
Applicant
AND
LOCAL GOVERNMENT STANDARDS PANEL
Respondent
Catchwords:
Local government Regulation of councillors Local Government Standards Panel Minor breach Standards of behaviour expected of a councillor Improper use of a person's office as a council member Whether sending email to constituent amounted to improper use of person's office Longstanding constituency matter involving Council and dispute between neighbours Invoice to third party constituent to pay Council's legal costs for discovery of documents Email suggested delay in payment of invoice Whether email conferred directly or indirectly an advantage on constituent Council had resolved to give free access to documents Context and circumstances of sending email Held: Improper use not established Councillor's actions held to be reasonable and appropriate in facts and circumstances of case Words and phrases: 'improper'
Legislation:
Local Government (Rules of Conduct) Regulations 2007 (WA), reg 7, reg 7(1), reg 7(1)(a)
Result:
Application for review allowed
Summary of Tribunal's decision:
The applicant (Councillor Hipkins) held office as an elected member of the Council of the City of Nedlands. In September 2009, he sent an email to a constituent following a brief telephone call from the constituent. The email and the telephone call related to an invoice for the payment of the costs of third party discovery of documents in the possession or control of the Council.
The documents were apparently needed by the constituent in relation to litigation involving a longstanding dispute between neighbours in Adams Road, Dalkeith, a dispute which Councillor Hipkins had been attempting to resolve. The dispute indirectly involved the City of Nedlands.
The email said: '[W]hen you get the [Council's legal fees] bill after taxing, don't pay it. Let me know'. It was alleged that Councillor Hipkins had improperly used his office as a councillor to confer an advantage on the constituent; namely, the potential for Council or the City staff to discount the total of the City of Nedlands' bill of costs 'by some indeterminable amount, if not entirely'.
The Local Government Standards Panel found the complaint against Councillor Hipkins had been made out and ordered that he be publicly censured.
The Tribunal reversed this decision, holding that whether activity was relevantly 'improper' was to be determined by reference to the whole context in which the impugned conduct was alleged to have occurred.
That context will include not only the statutory and formal context of a local government councillor's duties and responsibilities (including representing constituents), but also the particular facts surrounding the relevant event, transaction or circumstances which formed the backdrop to, and was the subject of, the charge of improper use of a person's office as a Council member.
Here, it was clear that Councillor Hipkins was concerned about whether the City itself had any culpability for, or had contributed to, the disputes in Adams Road; the level of access to information (or access to documents) given by the City's administration to ratepayers; and the apparently excessive cost to the constituent of obtaining the documents sought.
Importantly, the day before the telephone call and email exchange took place, the Council had itself resolved that various documents, including, it seems, some or all of those included in the third party discovery that led to the disputed bill of costs, should be made available to the constituent 'free of charge'.
Therefore, viewed in its context and circumstances, the conduct of Councillor Hipkins could not be said to be an improper use of his office. The Tribunal considered that, in the particular circumstances, the Councillor's actions were reasonable and appropriate.
Category: B
Representation:
Counsel:
Applicant: Mr MJ Hardy
Respondent: Mr CS Bydder
Solicitors:
Applicant: Hardy Bowen
Respondent: State Solicitor's Office
Case(s) referred to in decision(s):
Bradley and Local Government Standards Panel [2012] WASAT 44; (2012) 80 SR (WA) 69
Robbins v Harness Racing Board [1984] VR 641
Treby and Local Government Standards Panel [2010] WASAT 81; (2010) 73 SR (WA) 66
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 2 August 2012, the Local Government Standards Panel (Panel) determined that a City of Nedlands (City) Councillor, Mr Richard Maxwell Collier Hipkins, should be 'publicly censured' because he had committed a breach of reg 7(1)(a) of the Local Government (Rules of Conduct) Regulations 2007 (WA) (Regulations) when he sent to Ms Teri Burridge, a constituent, an email on 24 September 2009 which contained the following passage:
…when you get the [Council's legal fees] bill after taxing, don't pay it. Let me know.
The panel found to the effect that the sending of the email was an improper use of Cr Hipkin's office as a Council member in order 'to gain directly or indirectly an advantage' for Ms Burridge, or for her father, Mr John Burridge, such advantage being:
[T]he potential for Council or the City staff to discount the total of the [City of Nedlands'] relevant taxed bill of costs, payable by Mr Burridge, by some indeterminable amount, if not entirely.
The Tribunal has determined that, viewed in their proper context, the actions of Councillor Hipkins' did not amount to an improper use of his office as a Council Member.
The Tribunal gave its reasons for decision orally. What follows is taken from the transcript of those reasons and has been formally revised and edited for publication.
Legislation
So far as is relevant, the Regulations provide as follows:
7.Securing personal advantage or disadvantaging others
(1)A person who is a council member must not make improper use of the person's office as a council member ‑
(a)to gain directly or indirectly an advantage for the person or any other person; or
(b)to cause detriment to the local government or any other person.
Only reg 7(1)(a) of the Regulations is in issue in this review.
The critical issue is whether, in the facts and circumstances found by the Tribunal on review, what Councillor Hipkins did was relevantly 'improper' within the meaning of reg 7(1) of the Regulations.
Meaning of 'improper'
In Treby and Local Government Standards Panel [2010] WASAT 81; (2010) 73 SR (WA) 66 (Treby), Pritchard DCJ (as her Honour then was) discussed what was intended by 'improper' in relation to reg 7(1) of the Regulations, at [26] to [33]. After setting out, at [27], the relevant dictionary meaning of 'improper' ('unsuitable and 'inappropriate', according to the context of its use), her Honour summarised, at [29] and [30], what the case law suggested as to the meaning of 'improper' in this setting (internal citations omitted, emphasis added):
First, impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the [councillor] by reasonable persons with knowledge of the duties, powers and authority of his position as a councillor and the circumstances of the case.
Secondly, the impropriety does not depend on a councillor's consciousness of impropriety. It is to be judged objectively and does not involve an element of intent.
Thirdly, impropriety may arise in a number of ways. It may consist of an abuse of power, that is, if a councillor uses his or her position in a way that is inconsistent with the discharge of the duties arising from that office or employment. Alternatively, impropriety will arise from the doing of an act which a councillor knows or ought to know that he has no authority to do.
Fourthly, in the case of impropriety arising from an abuse of power, a councillor's alleged knowledge or means of knowledge of the circumstances in which the power is exercised and his purpose or intention in exercising the power will be important factors in determining whether the power has been abused.
Fifthly, a councillor's use of his or her office can be improper even though it is for the purpose or with the intention of benefiting the council.
Importantly, her Honour also noted, at [27], that (emphasis added):
It is clear that the meaning of the word 'improper' cannot be considered in isolation, but rather will take its flavour from the surrounding context, which includes an assessment of what is involved in role of a councillor … according to the [Local Government Act 1995 (WA)] and the Regulations, and the instruments made thereunder. The role of a councillor includes representing the interests of electors, ratepayers and residents of the district, providing leadership and guidance to the community in the district, and participating in the council's decisionmaking processes at council and committee meetings …
To that exegesis may be added the discussion of what 'improper' means, given by O'Bryan J in the Supreme Court of Victoria in Robbins v Harness Racing Board [1984] VR 641 (Robbins). The court was there looking at the collocation 'improper or offensive'. At 646, his Honour said (emphasis added):
The word 'improper' is more difficult to define and must depend upon the context in which the expression is used. For behaviour to be improper it must be such that a right-thinking person would regard the conduct as so wrongful and inappropriate in the circumstances that it calls for the imposition of a penalty.
Thus, it seems clear that the expression 'improper use' found in reg 7(1) of the Regulations and its application to any relevant event, transaction or circumstances must have regard to the local government context in which it is sought to be applied. That context will include not only the statutory and formal context of a local government councillor's duties and responsibilities, but also the particular events surrounding the relevant event, transaction or circumstances, which form the backdrop to, and is the subject of, the charge of improper use of a person's office as a Council member.
Essentially, what is relevantly improper will always be context‑driven; indeed, the 'circumstances' of the case are expressly acknowledged in both Treby (at [29]), and in O'Bryan J's formulation in Robbins (at 646).
Issues and agreed facts
The Attorney General of Western Australia intervened in the proceedings. He was represented by Mr C Bydder. Mr Bydder's statement of the relevant issues, as adopted from the respondent's neutral statement of issues and facts, appears in some six paragraphs. It is only necessary, for present purposes, to refer to issue 5, where it is asserted, correctly, that the relevant issue is 'whether the Applicant sent the email with the intent, purpose or aim that the intended result would be to gain directly or indirectly an advantage to Ms Burridge or her father, Mr John Burridge …'.
The essential facts asserted by the respondent, at paragraphs 7 to 19 of its statement of issues, facts and contentions, are agreed between the parties with one minor exception (dealing with the precise date when the applicant became Deputy Mayor). These facts are as follows:
7.The Applicant was elected as a member of the council of the City of Nedlands ('the City') on 28 February 2008 for a term expiring on 17 October 2009.
8.As at 24 September 2009, the Applicant was the City's Deputy Mayor.
9.On 17 October 2009[,] the Applicant was elected as a member of the City's council for a term expiring on 19 October 2013.
10.On 15 October 2011, the Applicant was elected as the City's mayor for a term expiring on 17 October 2015.
11.The Applicant continues to be the City's mayor.
12.Prior to the Applicant's election to the City's council on 28 February 2008, there had been a series of disputes between neighbours in Adams Road, Dalkeith, namely the Burridge and the Anderson families.
13.In or about January 2008, Mr Burridge commenced proceedings in the Supreme Court of Western Australia against Hadley Holdings Pty Ltd ('the proceedings').
14.Shortly after his election to the City's council on 28 February 2008, the Applicant became involved in endeavouring to resolve the disputes between the Burridge and the Anderson families.
15.The Applicant did not succeed in resolving the disputes between the Burridge and the Anderson families.
16.Prior to 23 September 2009:
(a)Mr Burridge successfully obtained an order in the proceedings that the City, which was not party to the proceedings, give discovery of all documents that were or had been in the City's possession and related to any matter in issue in the proceedings ('the discovery order');
(b)Mr Burridge undertook to pay the City's costs of complying with the discovery order; and
(c)the City complied with the discovery order at a cost to it said to be in excess of $10,000.
17.As at 23 and 24 September 2009, Ms Burridge held a general power of attorney from Mr Burridge.
18.On 24 September 2009, the Applicant sent the email which read as follows:
'Hi Terry,
As I mentioned to you on the phone, when you get the bill after taxing, don't pay it. Let me know.'
19.The Applicant sent the email in his capacity as a Council member. The email was sent to Ms Burridge and copies to two of the City's councillors, Cr Toni James and Cr Bronwen Tyson.
The critical contentions of the intervener are rejected by counsel for Mr Hipkins, Mr M Hardy, in his written response, as follows (at paragraphs 8 to 10):
[T]he Applicant says … that the clearest inference that can be drawn [from] the email is that the Applicant sought to do no more than to preserve the status quo pending further investigations, inquiry and debate in relation to the amount referred to in the email, which in and of itself, did not and could not have a probable or likely result that the amount referred to in the email would be discounted, or not be required to be paid at all.
Further, the amount of money referred to in the email was a contentious matter and the payment or otherwise of that money, in the reasonable view of the Applicant, was a matter affecting the good governance of the city.
For the same reasons, the Applicant's use of his office in sending the email cannot be impugned as improper when viewed objectively.
Context and circumstances
I return to the central issue of ascertaining what the relevant context of the sending of the email was. The first point to notice is the applicant's longstanding interest in resolving or assisting in the resolution of the disputes between two neighbours, and indirectly the City, in relation to Adams Road, Dalkeith (see the agreed facts at paragraphs 12 to 14).
The second point of context was the obvious strains in the relationship between Councillor Hipkins and the then CEO of the City in respect of the latter's administration on 'matters of governance'. Councillor Hipkins described the situation as:
[The relationship with the CEO] was cordial, but he was … playing a game of keeping [the Councillors] in the dark. (T:31; 26.09.13)
Now, whether these characterisations are correct or incorrect, it is clear that Councillor Hipkins was, at all material times, worried about three things in particular:
1)whether the City itself had any culpability for, or had contributed to the disputes in, Adams Road;
2)the levels of access to information (or access to documents) given by the City's administration to ratepayers, and in particular Mr Burridge and his daughter, in respect of planning and related documents held by the City; and
3)the cost to Ms Burridge of, in effect, obtaining these documents officially.
To illustrate the point, I reproduce two exchanges from Councillor Hipkins' cross‑examination, which give a flavour of his mixed motivations and interests. He said:
What incensed me was [that Mr] Burridge was being asked to pay a very large sum for access to planning documents [relating to or affecting their own property]. (T:20; 26.09.13)
… I wasn't concerned so much about the cost. I was concerned about the governance of the city. (T:21; 26.09.13)
It is important to also observe that three months before the September 2009 email, Mr Burridge, then 91 years of age, had written to Councillor Hipkins, in his capacity as his local representative, about an earlier estimated costs bill from the Council in the sum of $12,400 (approximately). This was, in effect, an earlier iteration of the final bill that Ms Burridge would telephone Councillor Hipkins about in September 2009.
The context, based upon these assertions made by Mr Burridge, was his plea that this sum was 'outrageous', combined with a request for Councillor Hipkins to have the account 'cancelled'.
Further, and importantly, the day before the email was sent, Council had carried a specific resolution that various documents ‑ presumably including some or all of those included in the third-party discovery that led to the disputed bill of costs ‑ should be made available to Mr Burridge 'free of charge'.
Now, so far as may be relevant, the trend of public events after September 2009 when the email was sent until the end of the year is more or less consistent with those circumstances already established. Thus, in December 2009, a resolution was carried at a general meeting of ratepayers calling upon Council to abandon the Burridge invoice altogether.
Analysis
I accept that, read literally and divorced of context, the words complained of could be read as breaching Councillor Hipkins' duty to the Council and its ratepayers by, for example, suggesting an apparent interference without relevant authority in relation to the payment of what was a lawful debt due and owing to the Council.
However, it is clear beyond any doubt that Councillor Hipkins, in a brief exchange on the telephone and in a follow up confirmatory email, conveyed the impression that he intended to take steps to investigate the question of whether Ms Burridge should have to pay all or some of the invoice that she had received.
That was the result that he was plainly seeking to achieve in the particular circumstances that I have set out above. This is not, viewed in its true context, a case of seeking to bestow an indirect advantage through the improper use of one's office. Given the representations made, the resolution of Council carried the day before, and the protracted and complex background to the dispute in Adams Road, such conduct was not only understandable but, I think, a reasonable and appropriate response by Councillor Hipkins in the circumstances that he was then dealing with.
It is true, as Councillor Hipkins properly conceded during the hearing (in an exchange with the Tribunal), that perhaps, with the benefit of hindsight, he could have chosen his words in his email somewhat more carefully. But he is not, in my view, to be reprimanded or censured because of that error ‑ if that is what it was ‑ arising out of a quick email exchange following a telephone call from a constituent that he was helping in a longstanding matter.
The standards expected of local government councillors are high, but, as I have remarked before in other proceedings in the related context of the duties of councillors to declare their interests (Bradley and Local Government Standards Panel [2012] WASAT 44; (2012) 80 SR (WA) 69 at [45]):
Local councillors do a critical, necessary and difficult job; they attempt to represent local opinion which is not always an easy task. They have little assistance in the way of staff and independent research facilities and they are not particularly well‑remunerated (at least as ordinary suburban or rural councillors). They are political creatures in the best sense of that description who are primarily, in this capacity at least, accountable to their local electors and community. They do not always get things right, as some of the planning cases in this Tribunal testify. But they are not to be criticised for attempting to represent their constituency and community interests to the best of their abilities. Their job should not be made even more difficult by the imposition of unworkable rules that, in effect, limit what they may say when they are undertaking these critical functions.
Now, those views, if I may say so, have broad application to the events that occurred in this case.
The application for review should therefore be allowed.
Orders
For the reasons set out above, the Tribunal's orders will be:
1.The application for review is allowed.
2.The decisions of the Local Government Standards Panel are set aside and in substitution thereof there will be a decision dismissing the complaints.
I certify that this and the preceding [30] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, SENIOR MEMBER
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