HODSDON and LOCAL GOVERNMENT STANDARDS PANEL
[2019] WASAT 49
•3 JULY 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION: HODSDON and LOCAL GOVERNMENT STANDARDS PANEL [2019] WASAT 49
MEMBER: JUDGE T SHARP, DEPUTY PRESIDENT
MR M SPILLANE, SENIOR MEMBER
HEARD: 13 AND 14 MARCH 2019
DELIVERED : 3 JULY 2019
FILE NO/S: CC 1187 of 2018
BETWEEN: BENEDICT GERVASE HODSDON
Applicant
AND
LOCAL GOVERNMENT STANDARDS PANEL
Respondent
ATTORNEY GENERAL OF WESTERN AUSTRALIA
Intervener
Catchwords:
Local government - Regulation of Councillors - Local Government Standards Panel - Rules of conduct - Minor breach - Conduct at a council meeting
Legislation:
Local Government (Rules of Conduct) Regulations 2007 (WA), reg 4, reg 4(2), reg 7, reg 7(1)
Local Government Act 1995 (WA), s 5.104(1), s 5.105, s 5.105(1), s 5.106, s 5.110, s 5.110(6), s 5.125
State Administrative Tribunal Act 2004 (WA), s 27, s 27(2), s 27(3), s 29, s 29(1), s 29(2), s 29(3), s 29(3)(c)(ii), s 31(1)
Result:
Application for review allowed
Category: B
Representation:
Counsel:
| Applicant | : | Mr GJ Douglas |
| Respondent | : | No Appearance |
| Intervener | : | Ms J Vincent |
Solicitors:
| Applicant | : | Douglas Cheveralls Lawyers |
| Respondent | : | N/A |
| Intervener | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Treby v Local Government Standards Panel (2010) 73 SR (WA) 66
REASONS FOR DECISION OF THE TRIBUNAL:
Background
Application
This matter comes before the Tribunal by way of an application by Cr Benedict Gervase Hodsdon (applicant or Cr Hodsdon) under s 5.125 of the Local Government Act 1995 (WA) (LG Act). The applicant is a councillor at the City of Nedlands (City or Council). The application is for a review of a decision of the Local Government Standards Panel (Standards Panel) published on 7 March 2018, where the Standards Panel held that Cr Hodsdon committed minor breaches under the LG Act. The decision as to sanction was then published on 18 May 2018. The decision concerns a complaint made against the applicant by Cilla de Lacy (Ms de Lacy or Cr de Lacy) who later became a councillor at the City.
The complaint
Ms de Lacy, who was at the time standing for election to Council, authorised an advertisement which was published in the 23 September 2017 edition of the Post Newspaper (Post), a local newspaper in the area. The advertisement contained five dot points as follows:
•Cilla de Lacy: Chair, Hollywood Underground Power Action Group
•Twenty years' public policy experience in infrastructure, land planning and sustainability
•Secured underground power for West Hollywood at a good price
•Lobbying State Government and Western Power to finish the job
•Committed to getting it done!
The conduct the subject of the complaint in question occurred during an ordinary Council meeting of the City on the evening of 26 September 2017. At that meeting, a motion was moved under 'Urgent Business' which stated:
Council instructs his Worship the Mayor or the [Chief Executive Officer] to write to the Post Newspaper correcting the misleading assertion in the advertisement on page 16 in last week's Post that a candidate for election Ms Cilla de Lacy was responsible for the initiation of the underground power project for Hollywood.
During the debate on the motion, the content of the advertisement was discussed, and in the course of those discussions Cr Hodsdon was alleged to have made comments in respect of Ms de Lacy.
Following Council debate, the motion was carried eight votes to one.
In the 30 September 2017 edition of the Post, an article was published in which comments made by various councillors during the debate were reported.
Cr de Lacy was not a councillor at the date of the meeting but went on to be elected as a councillor in the subsequent election. On 8 November 2017, Cr de Lacy (as she by then was) filed a Complaint of Minor Breach Form with the City's Chief Executive Officer (CEO) in respect of the comments attributed to Cr Hodsdon at the meeting of 26 September 2017. The CEO forwarded Cr de Lacy's complaint to the Standards Panel by a letter of 13 November 2017.
The complaint and the words complained about by Cr de Lacy were set out in the Form as follows:
At the [City's meeting on 26 September 2017] [the applicant] described a line in an election advertisement for [Ms de Lacy] as 'Scaffidiish and Trumpish in nature'. 'She has no capacity, no authority or ability to secure it (underground power) at the best price', he said.
…
I dispute the claim that my behaviour was 'Scaffidiish and Trumpish in nature'[.]
I dispute the claim that 'She has no capacity, no authority or ability to secure it at the best price'[.]
Decision under review
Following its consideration of the complaint, the Standards Panel published its findings and reasons dated 7 March 2018. Ms de Lacy's complaint was summarised by the Standards Panel at para 14 which relevantly states:
In her Complaint Form Cr de Lacy says:
•She disputes that her behaviour was 'Scaffidiish … in nature'. It is wrong to describe her as 'Scaffidiish' because she has never been found to have breached (the Act)[.]
•She did have the capacity, ability and authority to secure underground power at the best price given her professional qualifications and experience, as well the work she led as Chair of the Group[.]
Notably, the summary of the complaint did not mention the reference in her complaint to her behaviour being termed 'Trumpish'.
In its findings, under the heading 'Whether any part of the expression is objectionable or offensive', the Standards Panel stated:
29.The Panel finds that by saying the Statement was 'Scaffidiish' Cr Hodsdon was likening Cr de Lacy's conduct to the conduct of Ms Scaffidi, who had broken the law by committing numerous offences under the Act[.]
30.Any reasonable person in Cr de Lacy's position would consider the 'Scaffidiish' expression to be objectionable as well as offensive[.]
31.Further, it is more likely than not that a person attending the [Ordinary Council Meeting] and a reasonable reader of the Post would be aware of Ms Scaffidi's offending and find Cr Hodsdon's likening of Cr de Lacy's Statement to Ms Scaffidi's conduct to be objectionable.
…
The Panel finds that Cr Hodsdon breached regulation 4(2) by using the expression 'Scaffidiish in nature'.
The reference to regulation 4(2) may be a reference to reg 4(2) of the Local Government (Rules of Conduct) Regulations 2007 (WA) (LG Regulations). Alternatively, it may be a reference to Order 8.4(2) of the City's Standing Orders Local Law 2009 (City's Standing Orders).
The references to the Act are a reference to the LG Act.
Again, there were no findings on the use of the word 'Trumpish'. Further, the Standards Panel made no findings as to whether the second aspect of the complaint, namely the comments concerning Cr de Lacy's 'capacity to secure' were objectionable or offensive.
Proceedings in the Tribunal
By application dated 8 June 2018, Cr Hodsdon applied to this Tribunal to review both the Standards Panel's findings against him and the sanction imposed, which was an order for a public apology. Following various procedural steps, the matter was heard by the Tribunal on 13 and 14 March 2019.
It should be noted that the matter was heard concurrently with matter CC 1188 of 2018, being an application by Cr Leo John McManus in respect of findings and sanctions made against him by the Standards Panel arising out of comments he made at the same meeting. However, for reasons of clarity, Cr McManus's matter is dealt with in a separate decision published by the Tribunal.
As is appropriate in reviews of this type, the Standards Panel did not play an active role in the review proceedings due to the possibility that exists in review proceedings where the Tribunal may invite the decisionmaker to reconsider its decision (s 31(1) of the StateAdministrative Tribunal Act 2004 (WA) (SAT Act)) and to the fact that the powers of the Tribunal on review include the power to set aside a decision that has been reviewed and to send the matter back to the decisionmaker for reconsideration (s 29(3)(c)(ii) of the SAT Act).
In view of the Standards Panel's limited participation at the hearing, the Tribunal was assisted by the intervention of the Attorney General of Western Australia (intervener) who acted as a contradictor in the review proceedings.
Agreed facts
Cr Hodsdon was elected a council member of the City in May 2013 and was a councillor at the time of the alleged breaches.
At the relevant time, Cr Hodsdon and Ms de Lacy were both candidates in the upcoming local government elections for the Hollywood Ward due to be held on 21 October 2017. Cr Hodsdon was already a councillor and was seeking reelection.
No recording or minute of the debate was kept. However, Mr Brett Christian, the managing editor of the Post, was in attendance and took contemporaneous notes. In the 30 September 2017 edition of the Post an article was published under Mr Christian's name with the headline 'Cold Shoulder For De Lacy', in which comments attributed to various councillors were set out.
Following the passing of the resolution outlined earlier, the CEO wrote to the managing editor of the Post on 29 September 2017 in compliance with the resolution stating:
On behalf of the City of Nedlands, I wish to clarify the assertion made by Cilla de Lacy in her advert that she 'secured underground power for West Hollywood at a good price'.
While Ms de Lacy did lobby hard in support of underground power, the potential for an underground power project was actually initiated as a priority in the City of Nedlands' Community Strategic Plan adopted in 2013.
City staff, together with elected members, formulated a strategy that initially targeted the State Underground Power Program (SUPP) as the preferred method of delivering underground power to the rest of the City.
When the City was not successful with SUPP, staff then negotiated with Western Power to explore opportunities that would deliver projects using a fully-funded client model, in parallel with Western Power high voltage projects associated with 11KVa upgrades in the western suburbs.
This option eventually became the Nedlands (West Hollywood) Underground Power Project. It is worth noting the priority project under SUPP would have been Mt Claremont, not West Hollywood.
The final price for the project was a process of continuous negotiation between Western Power and the City. The council chose to continue, even when initial community consultation was far from supportive, due in part to the Hollywood Underground Power Action Group's campaign to say no.
We respect Ms de Lacy's commitment to underground power and the role she has played in this process but, in the interests of true and accurate facts, the Council believes it is important the correct information be presented to the community.
Comments complained about
The specific comments which gave rise to the complaint and to be considered by the Tribunal were agreed by the parties and are set out in the intervener's statement of issues facts and contentions and again at para 7 of the intervener's submissions which states:
The [article in the Post] records that Cr Hodsdon made the following comments during the Meeting:
(a)a line in a preelection advertisement published in the Subiaco POST Newspaper (Advertisement) that Ms Michelle de Lacy had 'secured underground power for West Hollywood at a good price' (Statement) was 'Scaffidiish and Trumpish in nature' (Comment 1);
(b)Cr de Lacy had 'no capacity, no authority or ability to secure it (underground power) at the best price' (Comment 2); and
(c)the Statement 'borders on being a lie' (Comment 3).
In closing submissions, counsel for the intervener conceded that Comment 3 should not be pressed, principally for the reason that Comment 3 was not included in the complaint by Cr de Lacy.
In the circumstances, both the Tribunal and counsel for Cr Hodsdon accepted that Comment 3 was no longer part of the review and will not be considered further in these reasons.
Issues to be determined
The parties agreed that there were five issues to be determined by the Tribunal:
1)whether Cr Hodsdon was a member of Council of the City at the relevant time;
2)whether Cr Hodsdon made the comments complained of at the ordinary meeting of Council on 26 September 2017;
3)whether in making Comments 1 and 2, Cr Hodsdon contravened Order 8.4(2) City's Standing Orders and is therefore in breach of reg 4(2) of the LG Regulations;
4)whether Cr Hodsdon, in making Comments 1 and 2 made improper use of his office as a council member for the purposes of reg 7(1) of the LG Regulations, and in making the comments intended to:
a)directly or indirectly gain an advantage for himself or any other person; or
b)caused detriment to Ms de Lacy; and
5)if the Tribunal finds that Cr Hodsdon has committed one or more minor breaches in respect of issues 3 and 4 above, how should those breaches be dealt with under s 5.110(6) of LG Act?
It was accepted from the outset by all parties that Cr Hodsdon was a member of Council of the City at the relevant time and so issue 1 is answered in the affirmative.
In respect of issue 2, during the course of giving evidence before the Tribunal, Cr Hodsdon accepted that he had made Comment 1 and Comment 2 set out above and therefore issue 2 is also answered in the affirmative, leaving only the issues 3, 4 and 5 remaining to be determined.
The relevant statutory provisions
Section 5.104(1) of the LG Act enables regulations to be made prescribing rules of conduct for council members:
5.104.Other regulations about conduct of council members
(1)Regulations may prescribe rules, to be known as the rules of conduct for council members, that council members are required to observe.
Section 5.105(1) of the LG Act provides:
5.105.Breaches by council members
(1)A council member commits a minor breach if he or she contravenes
(a)a rule of conduct under section 5.104(1); or
(b)a local law under this Act, contravention of which the regulations specify to be a minor breach.
Regulation 4 of the LG Regulations under the heading 'Contravention of certain local laws' states:
(1)In this regulation
local law as to conduct means a local law relating to conduct of people at council or committee meetings.
(2)The contravention of a local law as to conduct is a minor breach for the purposes of section 5.105(1)(b) of the Act.
The City has adopted the City's Standing Orders as a local law effective from 2 September 2016. Order 8.4(2) 'Adverse reflection at a meeting' states:
(2)It is an offence for a member of the Council or a committee to use offensive or objectionable expressions in reference to any member, employee of the Council, or any other person[.]
Regulation 7(1) of the LG Regulations provides:
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.
Section 5.106 of the LG Act outlines the standard of proof in relation to findings of a breach and states:
Deciding whether breach occurred
A finding that a breach has occurred is to 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.
Section 5.110 of the LG Act provides that the Standards Panel may deal with a minor breach in the following manner:
5.110.Dealing with complaint of minor breach
(1)The member of the primary standards panel who receives a complaint from a complaints officer under section 5.107(3)(c), 5.108(2)(c) or 5.109(1)(c) is to
(a)allocate that complaint to a standards panel; and
(b)send the complaint and anything received from the complaints officer to the member of that standards panel who is appointed under Schedule 5.1 clause 2(a).
(2)After receiving a complaint allocated to it under subsection (1), a standards panel is required to
(a)make a finding as to whether the breach alleged in the complaint occurred; or
(b)send the complaint to the Departmental CEO under section 5.111.
…
(6)The breach is to be dealt with by
(a)dismissing the complaint; or
(b)ordering that
(i)the person against whom the complaint was made be publicly censured as specified in the order; or
(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)[.]
Section 5.125 of the LG Act allows a review by the Tribunal of decisions by the Standards Panel to dismiss a complaint or to make an order.
The Tribunal's powers on review are contained at s 27 and s 29 of the SAT Act. Section 27 of the SAT Act states:
Nature of review proceedings
(1)The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decision maker but may involve the consideration of new material whether or not it existed at the time the decision was made.
(2)The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.
(3)The reasons for decision provided by the decision maker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision.
Section 29(1) to s 29(3) of the SAT Act states:
Tribunal's powers in review jurisdiction
(1)The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decision maker in making the reviewable decision.
(2)Subsection (1) does not limit the powers given by this Act or the enabling Act to the Tribunal.
(3)The Tribunal may
(a)affirm the decision that is being reviewed; or
(b)vary the decision that is being reviewed; or
(c)set aside the decision that is being reviewed and
(i)substitute its own decision; or
(ii)send the matter back to the decision maker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate,
and, in any case, may make any order the Tribunal considers appropriate.
Issue 3 Whether Cr Hodsdon in making Comments 1 and 2 contravened Order 8.4(2) of the City's Standing Orders
Order 8.4(2) of the City's Standing Orders states:
It is an offence for a member of the Council or a committee to use offensive or objectionable expressions in reference to any member, employee of the Council, or any other person[.]
In view of issues 1 and 2 having already been answered in the affirmative, the principal matter to be decided in respect of issue 3 therefore is whether either or both of the comments complained of is 'offensive' or 'objectionable'.
Comment 1 was that the statement in the advertisement that Ms de Lacy had 'secured underground power for West Hollywood at a good price' was 'Scaffidiish and Trumpish in nature'. Comment 2 was that Ms de Lacy had 'no capacity, no authority or ability to secure [underground power] at the best price'.
Intervener's submissions
In written submissions dated 13 March 2019, the intervener stated at para 19:
One or more of the comments made by Cr Hodsdon were objectionable or offensive because:
(a)Comment l the expression Scaffidiish carries the harmful and injurious implication that Cr de Lacy, like Lord Mayor Scaffidi, had committed serious breaches, or alternatively breaches of the LG Act. Further, on the Applicant's own admissions, Scaffidiish was intended to convey the importance of 'playing by the rules', and to imply that Cr de Lacy had not 'played by the rules'.
(b)Comment 1 Trumpish carried the harmful and injurious implication that Cr de Lacy, like the President of the United States Donald Trump, is prone to exaggeration, lies and takes credit for the work of others. Further, on the Applicant's own admission, Trumpish was intended to convey the importance of not misleading the electorate, and to imply that Cr de Lacy's Statement had mislead the electorate.
(c)Comment 2 carried the harmful and injurious implication that Cr de Lacy had misrepresented in the Advertisement that she had the capacity, authority and ability to secure underground power for West Hollywood at the best price, thereby implying that she was dishonest and can't be trusted.
In their oral closing submissions, counsel for the intervener again dealt with each of the comments submitting:
… starting with comment 1. … The reference to Scaffidiish invites a comparison to Lord Mayor Lisa Scaffidi who is on the public record that she committed an offence or offences under the Local Government Act and failed to disclose the truth.
Now, that expression is offensive or objectionable and I note there that it has be one or the other. And, of course, before I go on to explain what I say makes the expression offensive and objectionable, I must clarify that these are not the views of the AttorneyGeneral, but the State can't remain blind to what reasonable members of the community would make from these phrases. …
The phrases are offensive in that they are insulting, harmful and displeasing. They are objectionable because they excite dislike, they are unpleasant, undesirable and, finally, incite adverse reaction. …
… Moving on to the second component of comment 1, that the line was Trumpish in nature.
This is a reference to Donald Trump, the President of the United States, who judicial notice can be taken of the fact that he is prone to exaggeration, that he lies, or at least has stated things that are not true. That he takes credit for the work of others …
It's enough that he is prone to exaggeration and that he at least has lied in the past or at least stated things that are not true. For the reasons I already explained with regard to the Scaffidi-ish comment, that comment is offensive and objectionable. It's insulting, harmful, displeasing. It excites dislike, it's unpleasant, undesirable and incites an adverse reaction. …
It is her ad, after all, that we're speaking about. It can only sensibly be understood as being a reference ultimately to her. …
Comment 2, that Councillor De Lacy had no capacity, no authority or ability to secure 'it', being underground power at the best price. … it's inviting a conclusion that Councillor De Lacy could not have secured underground power, and therefore the line in the advertisement is not true.
If that's the case, the comment is offensive because it's harmful, because no one wants to be accused of publishing something that isn't true. It's objectionable because it prompts an adverse reaction from the listener. It's unpleasant to hear that someone hasn't told the truth, and it's able to be objected to. …
… you've heard no evidence from any of the witnesses called disputing her involvement. They only spoke to their involvement. Just because some people had involvement doesn't mean she didn't. … I would say just shortly, in my submission, the applicants have inflated the word 'secure' to a meaning it does not have.
And in its application when we actually look at the evidence the meaning of 'secure' is met. Councillor De Lacy has secured underground power, on one meaning of the word[.]
(ts 93 95, 14 March 2019)
Applicant's submissions
Turning first to the applicant's written submissions dated 14 March 2019 in respect of whether the comments were 'offensive' or 'objectionable', in respect of Comment 1, the applicant submitted at paras 37 and 38:
'Scaffidiish' is not a phrase that is common usage, and can only be interpreted by the suffix 'ish' which means 'after the manner of; having the characteristics of; ''like'', as in babyish'. It leaves open the question of what characteristics are intended to be compared and that question is to be determined, in my submission by the content.
Mr Hodsdon's evidence under cross examination was that he intended to convey that publishing the Advertised Statement was misleading by omission. In his answer to the [Standards Panel], he stated that he intended to convey that publishing the Advertised Statement which was misleading was not playing by the rules.
In respect of Comment 2, counsel for the applicant stated at para 42:
Comment 2 is simply true, and if true, not even potentially offensive or objectionable.
In oral submissions, in respect of Comment 1 counsel for the applicant stated:
… Mr Hodsdon, in crossexamination, said that he intended to convey that published in the advertised statement was misleading by omission, and in his answer to the Local Government Standards Panel he stated that he intended to convey that the published - publishing the advertised statement was misleading, not playing by the rules. So it's the context that will determine what features or qualities of Ms Scaffidi he might have been referring to in that sense. … He intended to say what he told this tribunal, which is that he believed that misleading by omission, not playing by the rules was what he intended to convey, and the other thing too is that this is a rhetorical device. Mr Hodsdon says in his own witness statement that the context or how he introduced this statement - and I will direct you to his evidence – it appears at paragraph 10. He says:
To the best of my recollection I said something like, 'We need to be careful in advertising reporting that we do not mislead or exaggerate events'. Comments that are misleading could be deemed Scaffidi-ish or Trumpish in nature.
So, again, we get some context we understand what he's saying. What he's doing is he's setting up a thin edge of the wedge argument. He's not saying - pointing the finger at Ms De Lacy and saying, 'You are Lisa Scaffidi'. He's saying, 'We want to watch out here. We set up something that's misleading and look where we're heading. We're heading somewhere else. We're heading towards Mr Trump. We're heading towards this not playing by the rules. We need to stop here and have a look at what has been put up and what we should do about it'.
(ts 129 131, 14 March 2019)
In respect of Comment 2, counsel submitted:
Ms De Lacy had no capacity, no authority or ability to secure underground power at the best price. I struggle with the complaint about this one, because, as I understand the word 'secure' - and my friend gave some submissions about it - I'm looking at the Oxford Dictionary here and it is, relevantly:
To succeed in obtaining something, especially with difficulty.
It's the concept of successfully actually closing the deal, is the way I would think, that she secured underground power and she either led or achieved this. And Mr Hodsdon gave evidence that he would have no difficulty if she said 'lobbied, worked hard for the' - you know, 'lobbied for underground power', you know, had some real effect on the residents' desire to have this achieved, whatever it is. It's the idea that an ordinary reader would look at this and go secured underground power, 'That's something Ms De Lacy did. She must have been in charge of that in some way'[.]
(ts 131 132, 14 March 2019)
Consideration of Issue 3
In respect of Comment 1, although it was agreed by the parties that the relevant words complained of were 'Scaffidiish and Trumpish in nature', the Tribunal has already noted that although both of those words were contained in the complaint lodged by Ms de Lacy, only the word 'Scaffidiish' was mentioned by the Standards Panel in its reasons for decision both where it outlined the complaint before it at para 14 of its reasons and again in its finding at paras 29 31. No reference was made to 'Trumpish'.
However, counsel for the intervener in its closing submissions stated:
… Councillor de Lacy says she disputes the claim that her behaviour was Scaffidiish and Trumpish in nature. She then goes on to particularise her concerns, particularly in regards to the Scaffidiish comment. I'm still pressing the Trumpish comment, but if you wish to receive further submissions on this point as to whether the Tribunal can also consider the Trumpish comment, I am willing to do so.
I don't have a firm answer for you right now. The panel certainly didn't make any positive finding that the Trumpish expression was objectionable or offensive, for example. It's difficult to know in substance what the boundaries of the complaint were. We certainly know they extend to Scaffidiish. Whether they extend to Trumpish is less clear because that word is quoted, although it is part of a phrase[.]
(ts 90 91, 14 March 2019)
The Tribunal will deal with the matter as it was complained of by Ms de Lacy and presented by the intervener.
In doing so, the Tribunal is particularly mindful of the provisions of s 27(2) and s 27(3) of the SAT Act outlined earlier which state:
(2)The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.
(3)The reasons for decision provided by the decisionmaker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision.
Comment 1
We turn then to the evidence before the Tribunal in respect of Comment 1 that Ms de Lacy's advertisement that she 'secured [underground power] for West Hollywood at the best price' was 'Scaffidiish and Trumpish in nature'.
Apart from making submissions and filing all relevant documents that were before the Standards Panel, the intervener called no evidence as to whether the comment, in the mind of anyone other than Ms de Lacy and the members of the Standards Panel, was offensive or objectionable.
Cr Hodsdon did give evidence and under crossexamination made the following statements.
Counsel to refer to somebody as 'Scaffid-ish' you didn't intend it as a compliment?
Cr Hodsdon… I wouldn't say it was meant to be a compliment, or the opposite, which is an insult. … All of this wasn't directed at the person. It's descriptive of the comments that were made in that ad. …
CounselYou were hoping to covey the point that the statement in the advertisement was misleading by omission?
Cr HodsdonBasically, yes[.]
…
CounselSo, you … use the word 'Scaffid-ish' were implying that then Ms De Lacy hadn't been playing by the rules?
Cr HodsdonWell, if truth is one of rules, then most probably yes, or misleading.
(ts 64 65, 13 March 2019)
In dealing with the 'Trumpish' comment, the question was put:
CounselAnd which parts of Trump were you thinking about when you used that word?
Cr HodsdonJust the he tends to take an acorn of truth and exaggerate …
CounselWhat do you mean 'acorn of truth'?
Cr HodsdonWell, it could be for instance, she could have said 'lobbied to secure', and that would have made it perfectly correct. …
…
Counsel… So as a matter of fact, you thought that the councillor was misleading the electorate because she published a misleading advertisement, because there was a statement in the advertisement that wasn't true?
Cr HodsdonYes[.]
(ts 65 66 and 69, 13 March 2019)
As can be seen from the extract just outlined, Cr Hodsdon did not mean the comments to be a compliment. However, neither did he intend them as an insult, but rather, as he stated, to be descriptive.
As outlined earlier, Counsel for the intervener's submissions were that the descriptions 'Scaffidiish' and 'Trumpish' are offensive and objectionable.
Counsel for the intervener made it clear that their submissions were not the views of the AttorneyGeneral but that:
[T]he State can't remain blind to what reasonable members of the community would make from these phrases'.
(ts 94, 14 March 2019)
However, there is no evidence before the Tribunal as to what reasonable members of the community would make of those phrases.
It is not in the Tribunal's view sufficient to merely submit without any evidence to support the proposition that a reasonable person would think that when the suffix 'ish' is added to the names of wellknown persons (in this case Ms Scaffidi and President Trump) and that name is then used pejoratively, because in Ms Scaffidi's case, she has on one occasion, been found to have committed breaches under the LG Act and, in respect of President Trump, that he is sometimes accused of exaggeration, that such descriptions are therefore offensive or objectionable.
Further, apart from the lack of evidence as to what a reasonable person might think in that regard, no evidence was put before the Tribunal that the description 'Scaffidiish' or 'Trumpish' had been used before in that way, or is in common or accepted usage in the lexicon of derogatory or insulting descriptions.
Without at least some evidence that 'reasonable members of the community' would find such descriptions offensive or objectionable, or that such expressions are commonly regarded as insulting, the Tribunal is not willing to postulate as to whether reasonable members of the community might or might not find such descriptions offensive or objectionable.
This Tribunal has in a number of matters over the years made it clear that councillors participating in council meetings should not adversely reflect on others and that good government requires courtesy and the Standing Orders under consideration in this case clearly require that.
However, the question of whether Comment 1 is offensive or objectionable must be measured to a standard and that standard in the Tribunal's view must be based on evidence.
Therefore, because there was no evidence before the Tribunal that a reasonable person would find Comment 1 to be offensive or objectionable or that such a description was recognised in common usage, the findings of the Standards Panel in respect of Comment 1 will be set aside.
Comment 2
We then turn to Comment 2 which was that Ms de Lacy had 'no capacity, no authority or ability to secure [underground power] at the best price'.
As with Comment 1, apart from Ms de Lacy's complaint and the relevant documents that were before the Standards Panel, there was again no evidence before the Tribunal that this comment was either offensive or objectionable.
Cr Hodsdon gave evidence in respect of this matter and made the following comments under crossexamination:
Counsel… So as a matter of fact, you thought that the councillor was misleading the electorate because she published a misleading advertisement, because there was a statement in the advertisement that wasn't true?
Cr HodsdonYes.
…
Cr Hodsdon it said 'secured'; she could have said 'helped secured', or 'lobby to secure this' …
CounselAnd that in failing to use those words, she had she was being untruthful?
Cr Hodsdon… I have no idea on intent, but as the ad stood it was, in my opinion, misleading.
…
CounselWere you insinuating that Ms De Lacy had claimed in her that advertisement, that she had authority to secure underground power at the best price; that - - -?
Cr Hodsdon- - - By herself, yes. She did not have that capacity; that's a statement of fact.
CounselBut you think she didn't secure it; she didn't have authority by herself?
Cr HodsdonWell, it's not me thinking it, it's fact; she doesn't have that capacity.
…
Cr Hodsdon… I think it's one of our duties to make sure that what's being put out there is honest. So that's a duty of a councillor. I mean, we're voted there to be honest.
(ts 69 - 70, 13 March 2019)
The underlying objection to Comment 2 was that it invited a conclusion that Ms de Lacy could not have secured underground power and therefore the line of the advertisement was not true. The intervener submitted in that regard:
If that's the case, the comment is offensive because it's harmful, because no one wants to be accused of publishing something that isn't true. It's objectionable because it prompts an adverse reaction from the listener. It's unpleasant to hear that someone hasn't told the truth, and it's able to be objected to. …
… you've heard no evidence from any of the witnesses called disputing her involvement. They only spoke to their involvement. Just because some people had involvement doesn't mean she didn't. … I would say just shortly, in my submission, the applicants have inflated the word 'secure' to a meaning it does not have.
(ts 95, 14 March 2019)
Cr Hodsdon in his evidence said that what he took exception to was the clear assertion by Ms de Lacy that she had 'secured' underground power.
As he stated in crossexamination:
Well it could be for instance, she could have said "lobbied to secure" and that would have made it perfectly correct.
(ts 65 66, 13 March 2019)
The Tribunal also received a statement of evidence from Mr Martyn Glover, the Director of Technical Services for the City who at paras 30 32 stated:
The only reason that the West Hollywood underground power proceeded and was possible, is because Western Power had slated that area for upgrade of the high voltage distribution network and were prepared to negotiate with the City.
All of the negotiation between the City and Western Power, since November 2016 was done by the City's administration in particular, me as Director of Technical Services.
All of the decisions relative to the project on behalf of the community were made by Council.
The Tribunal is satisfied that although Ms de Lacy did lobby in support of underground power, it was the council and its officers, together with other government agencies such as Western Power who in fact 'secured' it. This is consistent with the terms of the letter from the CEO to the Post of 29 September 2017.
In Treby v Local Government Standards Panel (2010) 73 SR (WA) 66 (Treby) at [27], Pritchard DCJ (as she then was) in dealing with the meaning of the word 'improper' explained that it cannot be considered in isolation but 'rather will take its flavour from the surrounding context, which includes an assessment of what is involved in the role of a councillor'.
Her Honour went on to say at [56], in the context of reg 7 of the LG Regulations which is the regulation under consideration in issue 4:
… As I explained above, reg 7 is directed, amongst other things, to ensuring that the debate within a council meeting is conducted in a fair, orderly and courteous fashion and that councillors are given the opportunity to speak and to be heard, with the objective of facilitating the proper consideration and determination of council business[.]
… However, reg 7 does not prohibit a council member from discussing council business, to question, and in some cases, no doubt, to criticise, the actions of others which impact on matters relevant to the affairs of a local government and the community it serves[.]
Those comments are, in the Tribunal's view, equally relevant to the present matter.
In the context of a debate of the motion before Council on 26 September 2017, the Tribunal cannot see that it was objectionable or offensive to make the comment complained of.
Further, no objective evidence was put before the Tribunal that a reasonable person would find Comment 2 by Cr Hodsdon, in the course of a debate in the circumstances of this particular matter to be offensive or objectionable.
The Tribunal is therefore not satisfied to make the finding that in the circumstances, Comment 2 is offensive or objectionable.
However, because the Standards Panel did not find Comment 2 to be objectionable or offensive there is therefore no finding to set aside.
Issue 4 Whether Cr Hodsdon in making Comments 1 and 2 made improper use of his office as a council member for the purposes of reg 7(1) of the LG Regulations and, in making those comments intended:
(a) directly or indirectly to gain an advantage for himself or any other person; or
(b) to cause detriment to Cr de Lacy.
The wording of this issue is taken from reg 7(1) of the LG Regulations set out earlier. The first question to be answered is whether in making the comments complained of, Cr Hodsdon made improper use of his office.
However, as is clear from a plain reading of reg 7(1) and in keeping with previous decisions of this Tribunal, a finding that Cr Hodsdon in making the comments did make improper use of his office is not on its own a breach of the LG Regulations.
If the Tribunal makes such a finding it must then determine whether, in doing so, Cr Hodsdon intended to either directly or indirectly gain an advantage for himself or any other person or he intended to cause detriment to Cr de Lacy before it can find that there was a breach of reg 7(1).
The Standards Panel's finding in this regard at paras 44 47 of its decision in respect that Cr Hodsdon had made improper use of his office was based in part on its findings that Cr Hodsdon's comment 'Scaffidiish in nature' was objectionable and offensive (see para 44) and at para 45 the Standards Panel then stated:
The Panel rejects Cr Hodsdon's assertion that he did not direct his Comments to Cr de Lacy personally. Putting the 'Scaffidiish' and 'borders on being a lie' comments together [with] the Panel's view is that a reasonable person would interpret these words as an attack on Cr de Lacy's honesty and motives. It was disrespectful and inappropriate to make such adverse comments about Cr de Lacy's character at a Council meeting open to the public.
And at para 47 found:
The Panel finds that Cr Hodsdon breached the standards of conduct expected of a councillor and therefore made improper use of his office. This element is established.
However, the Tribunal has found that the comment 'Scaffidiish in nature' was not objectionable or offensive. The other comment relied on by the Standards Panel to make its finding that Cr Hodsdon had made improper use of his office were the words, 'borders on a lie' was not pressed before this Tribunal.
In the circumstances, the conduct of Cr Hodsdon was not an improper use of his office as a council member and a breach of reg 7(1) of the LG Regulations cannot, in the Tribunal's view, be made out.
The Standards Panel's finding in that regard will be set aside.
Conclusion
The application for review is allowed and the complaints against Cr Hodsdon are dismissed.
On the basis that each of the Standards Panel's findings in the matter have been set aside, the sanction decision dated 18 May 2018 is also set aside.
Orders
1.The application for review is allowed.
2.The decision of the respondent made on 7 March 2018 that the applicant committed minor breaches under the Local Government Act 1995 (WA) is set aside and in substitution the decision is that the complaint is dismissed.
3.The decision of the respondent made on 18 May 2018 in relation to the sanction to be imposed on the applicant is set aside.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JUDGE T SHARP, DEPUTY PRESIDENT
3 JULY 2019
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