JACOB and LOCAL GOVERNMENT STANDARDS PANEL - [2022] WASAT 66

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION:   JACOB and LOCAL GOVERNMENT STANDARDS PANEL [2022] WASAT 66
MEMBER:   MS R PETRUCCI, MEMBER
HEARD:   7 JUNE 2022
DELIVERED          :   1 AUGUST 2022
FILE NO/S:   CC 1431 of 2021
BETWEEN:   ALBERT PAUL JACOB
Applicant
AND
LOCAL GOVERNMENT STANDARDS PANEL
Respondent
ATTORNEY-GENERAL OF WESTERN AUSTRALIA
Intervener

Catchwords:

Local Government Act 1995 (WA) - Review of decision of Local Government Standards Panel - Local Law - Alleged minor breach of reg 4 and reg 7(1)(b) of Local Government (Rules of Conduct) Regulations 2007 (WA) - Applicable principles - Reflect adversely - Impute motive - Whether improper use of office - Whether intent to cause detriment - Whether Panel made errors of fact - Procedural fairness

Legislation:

Local Government (Administration) Regulations 1996 (WA), reg 34D, reg 34D(2)
Local Government (Model Code of Conduct) Regulations 2021 (WA), reg 4, reg 17
Local Government (Rules of Conduct) Regulations 2007 (WA), reg 3, reg 3(1)(g), reg 4, reg 4(2), reg 7, reg 7(1)(b), reg 11
Local Government Act 1995 (WA), s 1.4, s 2.8, s 2.10, s 5.21, s 5.105(1)(a), s 5.105(1)(b), s 5.106, s 5.110(6), s 5.126
State Administrative Tribunal Act 2004 (WA), s 24, s 25(2), s 29(3)(c)(ii), s 31(1), s 37(1), s 51A

Result:

Application unsuccessful
Minor breaches confirmed

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	Mr L Geddes
Intervener	:	Mr L Geddes

Solicitors:

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

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

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 593
Bradley and Local Government Standards Panel [2012] WASAT 44
F.A.1 Insurances Ltd v Winneke (1982) 151 CLR 342
McManus and Local Government Standards Panel [2019] WASAT 50
Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83
Re v Local Government Standards Panel [2011 WASAT 108
Ryan v Local Government Standards Panel [2009] WASAT 154
Shannon and Local Government Standards Panel [2020] WASAT 50
Southwell and Local Government Standards Panel [2019] WASAT 128
Treby and Local Government Standards Panel [2009] WASAT 224
Treby and Local Government Standards Panel [2010] WASAT 81
Twist v Randwick Municipal Council (1976) 136 CLR 106

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

In October 2017, the applicant, Albert Paul Jacob (Mayor Jacob or applicant) was elected to the Council of the City of Joondalup (City or Council) for a term expiring in October 2021. Mayor Jacob was reelected to that role in October 2021.
On 6 September 2021, Mayor Jacob commenced these proceedings in the Tribunal under s 5.125 of the Local Government Act 1995 (WA) (LG Act) where he seeks a review of two decisions made by the Local Government Standards Panel (Panel or respondent).
Ms Lucyna Radzikowska brought a complaint (SP 2021-021) against Mayor Jacob with the Panel. The complaint is dated 20 January 2021 and alleges that Mayor Jacob breached reg 4 of the Local Government (Rules of Conduct) Regulations 2007 (WA) (Regulations)[1] when at the Ordinary Council Meeting of the City (OCM) on 17 November 2020, Mayor Jacob treated fellow council members 'in an unprofessional manner' and thereby:
a)breached cl 7.14 of the City of Joondalup Local Law 2013 (Local Law); and
b)breached cl 8.2 of the Local Law.
[1] The Regulations were repealed on 3 February 2021 by operation of reg 4 of the Local Government (Model Code of Conduct) Regulations 2021 (WA). The equivalent provision is now reg 34D of the Local Government (Administration) Regulations 1996 (WA).
Ms Radzikowska provided the following comments in her complaint:[2]
[2] Hearing Book (HB) at page 25.
(a)At the OCM on 17 November 2020 the behaviour of Mayor Jacob was very disturbing.
(b)The manner in which Mayor Jacob spoke and treated his fellow council members was very unprofessional and out of line, especially for someone who holds the position of Mayor.
(c)This behaviour would not meet the City's Code of Conduct for Employees, Elected Members and Committee Members 2018 (Code of Conduct) nor be conducive to a healthy and safe work environment for council members and staff alike.
(d)Those who have undertaken corporate governance or director training should know better than to allow the Chair to abuse their power to such a degree.
(e)The behaviour [of Mayor Jacob] contravenes the Local Law:
(i)Part 7 - Conduct of members - cl 7.14(2)(a)(b) and (c); and
(ii)Part 8 - Preserving Order - cl 8.2(l)(a) and (b).
In its Finding and Reasons for Finding, dated 7 May 2021, the Panel concluded that it was more likely than not that Mayor Jacob had breached both cl 7.4(2)(a) and (b) of the Local Law but that he had not breached cl 7.14(2)(c) nor had he breached cl 8.2(1)(a) and (b) of the Local Law. The Panel concluded that for complaint SP 2021-021, Mayor Jacob had breached reg 4 of the Regulations twice.
Separately, Councillor (Cr) Russell Poliwka brought a complaint (SP 2021023) with the Panel. The complaint is dated 29 January 2021 and alleges that Mayor Jacob:
a)breached reg 4 of the Regulations when at the OCM on 17 November 2020, Mayor Jacob breached:
i)cl 8.3(2) of the Local Law;
ii)cl 7.14(1)(a) of the Local Law;
iii)cl 7.14(1)(b) of the Local Law;
iv)cl 7.14(1)(c) of the Local Law; and
b)breached reg 7 of the Regulations when Mayor Jacob made certain improper comments:
i)at the OCM on 23 June 2020;
ii)at the OCM on 20 October 2020; and
iii)at the OCM on 17 November 2020.
Cr Poliwka provided the following comments in his complaint:[3]
[3] HB at pages 52-55.
(a)At the Ordinary Council Meeting held on 17 November 2020:
(i)Mayor Jacob repeatedly breached cl 7.14(a), (b) and (c) of the Local Law.
(ii)Mayor Jacob also failed to follow the correct procedure when a point of order is raised being cl 8.3(2) of the Local Law.
(iii)Mayor Jacob as presiding member, did not listen to the point of order, but spoke over the member who was raising the point and dismissed the matter raised. He then threatened to have the member removed.
(iv)Mayor Jacob refers to the motives behind a motion as being of 'questionable intent' and using 'disingenuous misinformation'.
(v)Mayor Jacob misrepresents events that took place in private committee meetings in a manner intended to improve his standing and reflect poorly upon fellow members.
(vi)Mayor Jacob's tone is sarcastic, condescending and disrespectful and has no place in orderly debate. His comments have no bearing on the substance of the motion being moved and were only intended to undermine the standing of fellow committee members.
(vii)Mayor Jacob singles the complainant out by name precipitating a point of order.
(viii)Mayor Jacob appears to be under the misapprehension that his fellow council members are somehow answerable to him regarding the views they express in Committee Meetings or in the Chamber and that these views must be immutable.
(ix)Mayor Jacob fails to appreciate that fellow elected members are entitled to take whatever view they see reasonable and that they are duty bound to change their views as information comes to light.
(x)When the complainant did raise the point of order, it was dismissed out of hand, before the basis of it was heard. Mayor Jacob then goes on to deny that he named the complainant specifically for criticism, when clearly he did just moments earlier. This is a clear breach of protocol.
(xi)Mayor Jacob also lectures fellow members on their actions in what amounted to a public scolding, imputing motives and misrepresenting the facts of this episode.
(xii)Mayor Jacob outrightly admits his intent was to shame elected members asserting that they 'deserved to be shamed'.
(xiii)Mayor Jacob states or that thinks his attempts at shaming elected members regarding this matter is acceptable.
(xiv)The material facts of the matter (as per the publicly available Major Projects and Finance Committee minutes) were that the City had been approached by two retail operators which precipitated the request to acquire a specific portion of crown land to the northwest of the Percy Doyle Reserve, with a view to rezoning for commercial purposes.
(xv)In spite of being approved by a committee for progress, the relevant matter had never come before Council, so no position has been taken by Council. It is therefore inaccurate to say that Council is not entertaining the proposal. It was equally unacceptable to put forward a press release stating this – or any position – as Council had not been consulted or formed a consensus.
(xvi)The City's officers are progressing with the investigation of acquiring this land and continue to be in consultation with retail operators.
(xvii)These are facts. Council has not said whether they approve or disapprove of this action at this time. Mayor Jacob is misrepresenting Council's position and falsely accusing fellow Councillors of malicious intent when they are seeking clarity for the community. This is unacceptable behaviour and against the City's own Local Law.
(xviii)Evidence of the City's position can be found in the Major Projects and Finance Committee Meetings, which are the source of community concern.
(b)This reflects a long and escalating pattern of such behaviour by Mayor Jacob.
(c)Other examples of Mayor Jacob clearly breaching the Local Law (cl 17.4) are at the June OCM and the October OCM. At the June OCM the following occurred:
i.At the June OCM matter arising was a tender for a landscaping contract. The officer had used the City's approved matrix for judging contracts and ranked the tenderers accordingly, recommending the incumbent contractor to continue.
ii.The Mayor had put forward and alternate motion putting forward an alternative contractor.
iii.When some Councillors questioned this change, putting forward concerns specifically relating to the facts of the matter, Mayor Jacob roundly and personally attacked them in an unnecessary tirade that had nothing to do with making his case for the contractor and everything to do with personal attacks on those who disagree with him.
iv.He described the dissenters' reasonable remarks as 'just bowl into the chamber' and 'I've got to wonder when you mean what you say'.
v.In addition, at the June OCM, the Mayor had turned down a sum of money offered by the Member for Kingsley on behalf of Council.
vi.He asserts that he raised this offer with Council at a budget session and that Council had shown no appetite for it. The Complainant and other members of Council have no recollection of this offer being tabled and are frankly mystified as to why it would have been refused.
vii.The Complainant respectfully raised the matter and was roundly abused.
viii.The Mayor criticised the Complainant for his voting record, which is not his role or place. The Mayor specifically said that he did 'not have a lot of respect' for the Complainant and described his reasonable lines of enquiry as 'trolling into the chamber and pulling stunts'.
(d)At the October OCM another example of Mayor Jacob's behaviour occurred when he allowed a fellow member of Council to unnecessarily bully and malign them for their voting record, once again ignoring a point of order, and also doubled down on this treatment with some criticism of his own.
(e)None of Mayor Jacob's rhetoric is about the motion at hand, but entirely to attempt to call out and humiliate members of Council in breach of the Local Law.
In its Finding and Reasons for Finding, dated 7 May 2021, the Panel concluded that it was more likely than not that Mayor Jacob had breached both cl 7.14(2)(a) and cl 7.14(2)(b) of the Local Law but that he had not breached cl 7.14(1)(c) nor cl 8.3(2) of the Local Law. Further, the Panel found that it was more likely than not that Mayor Jacob had breached reg 7(1)(b) of the Regulations on each of 20 October 2020 and 17 November 2020 but not on 23 June 2020. The Panel concluded for complaint SP 2021-023 that Mayor Jacob breached reg 4 of the Regulations twice and had breached reg 7(1)(b) of the Regulations twice.
Mayor Jacob seeks a review by the Tribunal under s 5.125 of the LG Act of the finding of two minor breaches in SP 2021-021 and four minor breaches in SP 2021-023 made by the Panel in its Decision and Reasons for Decision dated 23 August 2021 for SP 2021-021 and on 20 August 2021 for SP 2021-023. In particular, Mayor Jacob seeks to have the Panel's finding set aside, and in substitution an order that the complaints be dismissed.
As is appropriate in reviews of this type, the Panel did not play an active role in the hearing due to the possibility that the Tribunal may invite the Panel to reconsider its decision (s 31(1) of the State Administrative Act 2004 (WA) (SAT Act)) and that the powers of the Tribunal on a review include the power to remit the matter back to the Panel for reconsideration (s 29(3)(c)(ii) of the SAT Act). The Panel's role was therefore confined to producing the s 24 bundle of documents and supplementary bundles of documents.
In view of the Panel's limited participation in the hearing, the Tribunal was assisted by the intervention of the Attorney-General of Western Australia (intervener) pursuant to s 37(1) of the SAT Act who acted where necessary as a contradictor to the case presented by Mayor Jacob.
Section 5.106 of the LG Act outlines that the standard of proof required for finding that a breach has occurred is that it is to be based on evidence from which it may be concluded that it is more likely that not that the breach occurred. In Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83 at [124][125] the Court of Appeal held that, subject to the enabling legislation, no party bears an onus, legal or practical, in review proceedings in the Tribunal. I must therefore, having regard to the material before the Tribunal, decide whether it is more likely that each of the alleged breaches of reg 4 and reg 7(1)(b) of the Regulations occurred than they did not occur.
I heard the matter on 7 June 2022, following which I reserved my decision.
For the reasons which follow, in my view, the decision of the Panel of 23 August 2021 in relation to the finding of two minor breaches of reg 4 of the Regulations for complaint SP 2021-021 should be affirmed. Further, in my view, the decision of the Panel of 20 August 2021 in relation to the finding of two minor breaches of reg 4 of the Regulations and two minor breaches of reg 7(1)(b) of the Regulations for complaint SP 2021-023 should be affirmed.

Proceedings in the Tribunal

On 10 March 2022 the Tribunal ordered pursuant to s 51(A) of the SAT Act that:
a)issues 1-6, 8-15, 17 and 18 as set out in the intervener's Statement of Issues, Facts and Contentions dated 16 December 2021 (intervener's SIFC)[4] are to be dealt with as the first aspect of the proceedings; and
b)issues 7 and 16 as set out in the intervener's SIFC are to remain to be determined (if required) after the first aspect of the proceedings has been determined.
[4] HB at pages 453-495.
Following various procedural steps, and in accordance with the Tribunal's usual practice, the final hearing was conducted on the basis that all documents filed with the Tribunal would be regarded as being in evidence, subject to any proper objection. No objection was made.
At the final hearing on 7 June 2022, the Tribunal marked the following documents, which the parties identified as the documents that they intended to rely on, and to which I have had regard for the purpose of my determination in these proceedings, as an exhibit:
Exhibit 1:hearing book prepared by the Tribunal which included Mayor Jacob's application dated 6 September 2021 (pages 1 to 7); the intervener's bundle of documents dated 16 December 2021 (pages 233 to 405 and 406); and the applicant's and the intervener's Statement of Agreed Facts dated 30 March 2022 (pages 186 to 197) (HB);[5] and
Exhibit 2: the Local Law.
[5] Although forming part of 'evidence', each of the parties' contentions and submissions are taken to be submissions, rather than evidence. The applicant's Amended Statement of Issues, Facts and Contentions dated 31 January 2022 is at pages 135-185 and Outline of Submissions is at pages 200-230. The intervener's SIFC dated 16 December 2021 is at pages 453-495 and Outline of Submissions is at pages 496-514 and reply to submissions at pages 515-524.
Finally, at the final hearing, I had the benefit of receiving oral evidence and submissions from Mayor Jacob. Further, I had the benefit of receiving oral submissions from counsel for the intervener.

The complaints

The complaints that are the subject of these proceedings before the Tribunal, may be summarised as follows (complaints):[6]
•Mayor Jacob treated other members of Council in an 'unprofessional manner' at the OCM on 17 November 2020 (SP 2021-021); and
•Mayor Jacob made 'improper comments regarding other members of Council' at the OCM on 20 October 2020 and at the OCM on 17 November 2020. Further, Mayor Jacob reflected adversely and imputed a motive on other members of Council by his comments at the OCM on 17 November 2020 (SP 2021-023).

The material facts

[6] HB at page 19 and page 43.

The following facts are agreed by the parties. They are uncontroversial and I make the following findings of fact.[7]
[7] HB at pages 186-197.
The applicant was elected as the Mayor of the City in October 2017 and re-elected in that role in October 2021.

SP 2021-021

SP 2021-021 arises from Mayor Jacob's words and conduct at the OCM of the City on 17 November 2020.
The Council was debating a Notice of Motion put forward by Cr Thompson in relation to the future use of Lot 14077 (40) Warwick Road, Duncraig, ('Lot 14077' issue) when the following exchange occurred:
MAYOR JACOB:                 Question Councillor Poliwka?
CR POLIWKA:  Mr Mayor, my question was really just to - it was more to do with the - to do with the meeting procedures, especially where there is - there's 17/4 of those procedures. It seems to me that every meeting we have there is adverse reflection on either Councillor Thompson, Councillor Raftus (sic), myself and that's coming from a number of people. We're not here to account to you.
MAYOR JACOB:                 Okay, that's just debate, Councillor Poliwka, thank you.
CR POLIWKA:  Well I'd like to know whether you're going to - - -
MAYOR JACOB:                 That's debate, Councillor Poliwka.
CR POLIWKA:  Sorry?
MAYOR JACOB:                 Do you have a question?
CR POLIWKA:  Yes, the question is does that rule apply in this council?
MAYOR JACOB:                 The meeting procedures rule applies in this council, thank you, Councillor Poliwka.
CR POLIWKA:  Thank you, Mr Mayor.
MAYOR JACOB:                 Further comments. Do you have a question Councillor Hamilton-Prime?
CR HAMILTON-PRIME:      Yes, a question thank you, Mr Mayor. A question to yourself, Mr Mayor, who actually owns at this point in time lot 14077?
MAYOR JACOB:                 Mr CEO?
MR HUNT:I understand that it's owned by the -well, it's owned by the state, we don't own it.
MAYOR JACOB:                 Councillor Hamilton-Prime?
CR HAMILTON-PRIME:      So a different tier of government?
MAYOR JACOB:                 That's a good segue way for me to dive in. I'm supporting part 2 of the motion that anything which we do on this site in the future would only be in accordance with its current zoning being civic and community. But I will be splitting the motion and putting one and two together. I will not be supporting point one, mainly because it's completely nonsensical. [comment 1] It implies that the decision of the major projects committee was to acquire it for commercial purposes. That's not what the decision says. It's not what the decision ever said. What has been distributed purporting to be the minutes is not the minutes. It's not the decision. Go have a look at the decision. It is just that we should bring that site into council ownership. I think that's in the community's interests. I haven't heard anybody say that we shouldn't do that and at no point has the committee ever said that they support acquisition for commercial purposes. A couple of questions. Are we going to have motions ever month to quell rumours based on misinformation or questionable intent? Is this going to happen every month with a new calamity every time? Are we going to disregard all due process, and this breaches a number of protocols, and simply react to disingenuous misinformation? [comment 2] I have made it abundantly clear at each and every committee meeting that a) I support acquisition, and b) never for commercial purposes. And those councillors who are members of that committee, some of you have spoken very boldly tonight, strangely enough were silent in all the three committee meetings, never raised these objections there. Oh, but we can raise them now in public on a motion that breaches all protocols. What you would have to admit is every single meeting I have said I completely support bringing this into council ownership. I don't think you would ever succeed in getting a commercial proposal there. You know what's not appropriate in my view, Councillor Poliwka, it's not appropriate for an elected member of a committee to sit silently in the committee, to raise no concerns at the committee, to vote - - -[comment 3]
CR POLIWKA:  Point of order.
MAYOR JACOB:                 No, no point of order.
CR POLIWKA:  No, point of order, 714, read it. It stops discussion. You rule on it.
You're actually again doing exactly - - -
MAYOR JACOB:                 No point of order, Councillor Poliwka, this is my view of what is not appropriate conduct for any elected member, thank you.
CR POLIWKA:  You're an elected member, just like us.
MAYOR JACOB:                 Yes, and this is not appropriate for any elected member.
CR POLIWKA:  And if I want to sit silent you've got no right to question me. Sorry old son, but you haven't.
MAYOR JACOB:                 I didn't name you, Councillor Poliwka, wasn't even referring to you. Can you stop interrupting me or I will name you and ask you to leave. Councillor Poliwka, no point of order, can you cease? Now, councillors, in my view it is not appropriate conduct for any elected member of a committee to sit silently in three consecutive committee meetings, to raise no such concerns that they would then raise in a council meeting. To vote for the item every time and then if an elected member were to take selective parts of the minutes and distribute them, say to the local residents association and post them all over social media but somehow never point out that they had voted for the motion, I don't think that would be very appropriate either. I just simply don't think that's appropriate conduct for elected members. [comment 4] To distribute selected parts of these items and create an impression of something that is not what its reality is. In my view actions around this matter have displayed a disregard for good governance, a disregard for proper process and a concerning disregard and lack of respect for fellow elected members. [comment 5] Those who have engaged in a genuine and respectful manner by using the actual committee processes for that exact purpose which is what they exist for. Such actions also, in my view, would display a lack of respect for the community and for the truth. [comment 6] Now I recognise that there has been significant angst in the local community with regards to this issue, with many people being led to believe that there was some plan for example to close the Duncraig Library, for example, and that was even stated tonight. Every elected member around this table knows that rumour to be utter nonsense and at no point has this council ever considered closing that library. All of the rumours that have been circulating could have easily be put to rest. They didn't need a motion like this. They could have easily been put to rest if the full truth had simply been articulated and I am disappointed for local residents that they've been so misled. The only saving grace of this whole sorry saga for me is that if an issue must be fabricated and misrepresented to this extent, for people to find a reason to be critical of the City of Joondalup, then we must be actually doing a pretty good job. I do think shame on those who have been involved in orchestrating this, and in my view this whole saga is a farce. [comment 7] Further comments? Councillor Thompson, do you wish to close?
CR THOMPSON:                 Yes, indeed. I do not believe that I sat silently in the committee meeting. I did raise my concerns about that. Yes, I did vote for the motion because the motion at hand, as you have correctly pointed out, doesn't say we are going to sell any part of this off to developers. But the report and the catalyst for the report, and anybody can read it and understand, was an approach by retail entities. That was the catalyst for this coming forward to the committee. So that is why I was concerned about that particular matter. And to this date, can we say, that we're not – I feel like you know I'm in some parallel universe. Are we saying that we're not considering or that the report and the officers are not engaged in discussion with retail operators? We can't say that because it's not factually correct. And this is not a ruling about whether or not we can have coffee vans, it's about acquiring the site and what we're going to acquire it for and I would like, and the reason why I'm bringing this motion for it, is because I would like some clarification on that because whilst we haven't said that we're going to be getting rid of the library or amalgamating the Duncraig Leisure Centre into this, as a council nor have we ever taken a position on this, nor has it ever been voted on in here. So we haven't had an opportunity to. So what I wanted to achieve this evening and why I brought it forward is because I want to check in with council and I think that that is not a bad idea. Do we want to entertain this site for commercial purposes? Do we want to consider the approaches that are being made by retailers and do we want to consider having the site for retail? Or do we want to take that off the table? Our community wants us to take it off the table by and large as far as I can tell. So that is what I was hoping to try and achieve tonight because I couldn't hand on heart, and I still can't, go and look my community in the eye and say absolutely not, we will never put a supermarket there. I can't do it because it's never come before council, we don't have a position on it. I am tired of fellow members attributing my actions to poor motives. All I am trying to do is achieve some security and give some straight answers to my community which I can't do unless I know, because I'm only one vote, what my fellow elected members think. I am surprised that some councillors around this table didn't even realise this was Crown land. Of course, of course its Crown land, that's the whole purpose. We're trying to acquire this land and we're going to deploy it for something, and I'm hoping that it's not going to be for commercial. And I'm pleased that our Mayor doesn't want it to be for commercial either, but we have never stated it to our community and we have got a report that says that retailers are approaching us and that is the catalyst for why it's been brought to the major finance committee. So I'm just trying to clear this up for our community, once and for all and that's the purpose of this. I would like it to be moved as two different separate parts, please, one and two, but I do hope that you can support both of them because without one I still think that we haven't, as a council, not just one person's opinion made our indication on whether or not we think this site should be commercialised. Thank you.
(added emphasis in italics for comments referred to later in these reasons)

On 20 January 2021, Ms Radzikowska made a complaint to the Panel, alleging that Mayor Jacob had twice contravened reg 4 of the Regulations, namely:
a)a breach of cl 7.14(2)(a), (b) and (c) of the Local Law (allegation 1 in SP 2021-021); and
b)a breach of cl 8.2(1)(a) and (b) of the Local Law (allegation 2 in SP 2021-021).
Mayor Jacob took up the Panel's invitation to comment on the complaint but did not accept the information detailed therein, or that he had contravened reg 4 of the Regulations.
The Panel made its finding (Finding and Reasons for Finding) in relation to the complaint on 7 May 2021, finding that Mayor Jacob had committed two minor breaches of reg 4 of the Regulations; namely, a breach of each of cl 7.14(a) and (b) of the Local Law.
The Panel delivered its decision (Decision and Reasons for Decision) in relation to the complaint on 23 August 2021.
On 3 September 2021, the applicant applied to the Tribunal for review of the Panel's decision under s 5.125 of the LG Act.

SP 2021-023

SP 2021-023 arises from Mayor Jacob's words and conduct at the OCM on 23 June 2020, 20 October 2020 and 17 November 2020.
The relevant exchange from the 17 November 2020 OCM is set out at [23] above.
The relevant exchange from the 20 October 2020 OCM is set out below.
CR LOGAN:Thank you, Mr Mayor. First of all I'd just like to say that I welcome this call for a report. It's refreshing to hear Councillor Raftis talk about rates hardship and how we may as a city be able to assist those doing it tough. Especially after he along with Councillor Fishwick and Councillor Thompson voted against the budget which in a nutshell was providing hardship - - -
CR FISHWICK:      Point of order, Mr Mayor, I didn't vote against the budget. I fully supported it.
CR LOGAN: No, what I said Councillor Fishwick is that Councillor – sorry, Councillor Fishwick did I? Sorry.
MAYOR JACOB:    I think you did, Councillor.
CR LOGAN:My apologies, it's getting a late night.
MAYOR JACOB:    I think that's a fair comment.
CR LOGAN:Okay, my apologies, very late night.
MAYOR JACOB:    Point of order is sustained.
CR LOGAN:Point of order sustained, absolutely, my apologies. But especially when Councillor Raftis and Councillor Poliwka and Councillor Thompson actually - - -
CR THOMPSON:    Point of order, please, how is this relevant to the seconding?
MAYOR JACOB:    I'll let Councillor Logan finish his point I think, Councillor Thompson, I think he hasn't finished explaining. We'll see how he goes.
CR LOGAN:The point that I was trying to make, Councillor Thompson, is that because of the difficulty we're facing during Covid times the budget came down in support of helping ratepayers who are doing it tough, and this is the first time I've ever seen a budget deliver such assistance for ratepayers in the time that I have been here, not only residential ratepayers but also businesses, especially the smaller and medium ones. As I said earlier, I support the call for a report. I think it's a very smart way forward given that we may be facing some incredible tough times, after Christmas especially when JobKeeper dries up there could be a lot of unemployment, a lot of people who may do it very tough in terms of actually paying their rates. So we do need a clear policy. I'm not sure how other local governments are doing in this space. I know some already have hardship policies, but I do acknowledge the work that Councillor Raftis has done in this space and it's refreshing and thank you for the work that he's done. Let's move forward.
MAYOR JACOB:    Thank you, Councillor Logan. Further comment? Just a couple from myself then. I hadn't planned to go there but given Councillor Thompson's point of order I think I will. I think that was a perfectly relevant point for Councillor Logan to raise. I support this motion as well, I support efforts to address hardship. I support the efforts that Councillor Raftis outlined where the City has removed interest in many instances and where interest applied slashed it. The City has cut its entire rate base by 5.2 per cent. The only council in the state that has gone that far. But it is equally relevant to bring up, Councillor Raftis is moving this motion, that he, yourself Councillor Thompson and Councillor Poliwka all voted against every single one of those measures. That's a fact. However, this is a good process going forward and I would encourage you after working through the budget process next year, maybe isolate particular issues you have concern with, by all means, but you did vote against every single element of the budget including all of the hardship elements. What I wanted to just quickly say, a complete side issue but directly related to this and its an unusual opportunity to put on the record because I have had a number of emails from residents about rates collection, I suspect they fit into that five per cent that the director just referenced, and I'm sure other councillors get this as well. Sometimes if a ratepayer is in that situation and if they are in hardship I am keen that we do whatever we can to help them. But I occasionally get emails where people challenge receiving their rates on the constitutionality of local government. If they are in hardship, let us know and we'll work through that with that, but please to any residents, don't do that. People who do that are looking at the Australian constitution in previous referendums to recognise local government. That is entirely irrelevant. Australia is a federation, we were a state before we were a commonwealth and we are still a sovereign state. Our state constitutions pre-date the federal constitution and our state constitution has a clear, clear head of power for local government. I don't know if anyone is listening but I just want to state that on the record. Local government is a constitutional tier of government, further validly enacted through the state constitution and the state parliament. So if residents have hardship, I hope we can work to help them through with that but please don't try and say that it's not a constitutional tier of government so you don't need to pay your rates because that's just frankly wrong. Further comments? Councillor Thompson?
CR THOMPSON:    Thank you. I fully support this report coming forward to us. I have absolutely no idea how my voting record has any bearing at all on somebody else's notice of motion. I'm still puzzled by that, it just seemed like a – I'm not sure how this forum is the place to question how councillors choose to vote at all. But I do fully support it and I thank you for putting it forward.
MAYOR JACOB:    Further comments? Councillor Raftis, do you wish to close?
CR RAFTIS:Yes, thank you, Mr Mayor. I appreciate the positive comments around the table. I wish to clarify a couple of points in reference to the budget. A couple of the or at least I know some of the councillors names as having voted against the budget were probably the ones who were leading the way to say let's have a rate cut, instead of just deliver the same level of rate income across the board. So it's – I agree there's a learning curve for some of us in terms of splitting items out of budgets for next year and I take that on board. I did vote against the budget because I was most unhappy with the process and the level of information provided and the lack of responses that were provided in terms of determining me fulfilling my role of accountability to the ratepayers. So I won't stay on that. We are trying to achieve a positive outcome for ratepayers. This has been an issue that I even spoke to council meetings at prior to getting on board the council. So I would greatly like to see the City make some positive inroads in terms of looking after its ratepayers. They are, after all, the key source of income for the City. Thank you.
MAYOR JACOB:    Thank you, Councillor Raftis. I'll put that main and invite you all to cast your votes. I declare the voting closed and the item carried.
On 29 January 2021, Cr Poliwka made a complaint to the Panel, alleging that Mayor Jacob had made seven separate contraventions of the Regulations, namely:
a)breaches of reg 4 of the Regulations:
i)on 17 November 2020 by breaching cl 8.3(2) of the Local Law (allegation 1 in SP 2021-023);
ii)on 17 November 2020 by breaching cl 7.14(2)(a) of the Local Law (allegation 2 in SP 2021-023);
iii)on 17 November 2020 by breaching cl 7.14(2)(b) of the Local Law (allegation 3 in SP 2021-023); and
iv)on 17 November 2020 by breaching cl 7.14(2)(c) of the Local Law (allegation 4 in SP 2021-023); and
b)breaches of reg 7 of the Regulations:
i)by making improper comments at an OCM on 23 June 2020 (allegation 5 in SP 2021-023);
ii)by making improper comments at an OCM on 20 October 2020 (allegation 6 in SP 2021023); and
iii_by making improper comments at an OCM on 17 November 2020 (allegation 7 in SP 2021023).
Mayor Jacob took up the Panel's invitation to comment on the complaint but did not accept the information detailed therein, or that he had contravened reg 4 and/or reg 7 of the Regulations.
The Panel delivered its finding (Finding and Reasons for Finding) in relation to the complaint on 7 May 2021, finding that Mayor Jacob had committed two minor breaches of reg 4 of the Regulations (upholding allegation 2 of SP 2021-023 and allegation 3 of SP 2021-023) and two minor breaches of reg 7 of the Regulations (upholding allegation 6 of SP 2021-023 and allegation 7 of SP 2021-023).
The Panel delivered its decision (Decision and Reasons for Decision) in relation to the complaint on 20 August 2021.
On 3 September 2021, Mayor Jacob applied to the Tribunal for review of the Panel's decision under s 5.125 of the LG Act.

SP 2021-021 and SP 2021-023

Following the filing of the review applications with the Tribunal by Mayor Jacob, the Panel determined not to enforce the decisions (see above at [27] and [35]) until after the resolution of the review proceedings.
On 6 October 2021, the Tribunal stayed enforcement of the decisions of the Panel (see above at [27] and [35]) until 19 October 2021.[8] Subsequently, on 19 October 2021, the Tribunal, pursuant to s 25(2) of the SAT Act, stayed the decisions until further order.

The issues

[8] HB at page 525.

By order 1(a) of the orders made by the Tribunal on 10 March 2022, pursuant to s 51(A) of the SAT Act, issues 1-6, 8-15, 17 and 18 are to be dealt with as the first aspect of these proceedings.[9] The issues are:[10]
[9] HB at page 529.
[10] HB at pages 454 to 455.

SP 2021-021

Issue 1:Whether Mayor Jacob was a member of the City's Council at all material times.
Issue 2:Whether Mayor Jacob said the words set out above at [23].
Issue 3:Whether Mayor Jacob said the words (see above at [23]) at a meeting of the City's Council.
Issue 4:Whether cl 7.14(2)(a) and (b) of the Local Law are a 'local law as to conduct'.
Issue 5:Whether on 17 November 2020, Mayor Jacob contravened cl 7.14(2)(a) of the Local Law.
Issue 6:Whether on 17 November 2020 Mayor Jacob contravened cl 7.14(2)(b) of the Local Law.

SP 2021-023

Issue 8:Whether Mayor Jacob was a member of the City's Council at all material times.
Issue 9:Whether Mayor Jacob said the words set out above at [23] and [31].
Issue 10:Whether Mayor Jacob said the words (see above at [23] and [31]) at a meeting of the City's Council.
Issue 11:Whether cl 7.14(2)(a) and (b) of the Local Law are a ‘local law as to conduct'.
Issue 12:Whether on 17 November 2020, Mayor Jacob contravened cl 7.14(2)(a) of the Local Law.
Issue 13:Whether on 17 November 2020 Mayor Jacob contravened cl 7.14(2)(b) of the Local Law.
Issue 14:Whether on 20 October 2020, Mayor Jacob made improper use of his office as a member of the City Council to cause detriment to any person (reg 7(1)(b) of the Regulations).
Issue 15:Whether on 17 November 2020 Mayor Jacob made improper use of his office as a member of the City Council to cause detriment to any person (reg 7(1)(b) of the Regulations).

SP 2021-021 and SP 2021-023
Issue 17:Whether the Panel made specified errors of fact.
Issue 18:Whether Mayor Jacob was denied procedural fairness.

The remaining issues, 7 and 16, are to remain to be determined (if required) after the above issues are determined. Those issues are:[11]
Issue 7:If issues 1-6 are answered in the affirmative, how should any breaches of reg 4 of the Regulations by Mayor Jacob be dealt with under s 5.110(6) of the LG Act?
Issue 16:If issues 8-15 are answered in the affirmative, how should any breaches of reg 4 and reg 7 of the Regulations by Mayor Jacob be dealt with under s 5.110(6) of the LG Act?
[11] Ibid.
It was accepted from the outset by the parties that Mayor Jacob was a member of the City's Council at all relevant times. Accordingly, I answer 'yes' to issue 1.
It is also common ground that the Mayor Jacob said the words set out above at [23] and [31] and that Mayor Jacob said those words at a meeting of the City's Council. Accordingly, I answer 'yes' to issues 2, 3, 9 and 10.
Finally, the parties agree that cl 7.14(2)(a) and (b) of the Local Law are a 'local law as to conduct'.[12] Accordingly, I answer 'yes' to issues 4 and 11.
[12] Treby 2009 at [14] to [22] and [31].
This leaves issues 5, 6, 7, 12, 13, 14, 15, 17 and 18 for me to determine in these proceedings. A number of the issues overlap. I will deal with issues 5 and 12 together as one issue and I will deal with issues 6 and 13 together as one issue.
In the intervener's SIFC, the intervener submits that all issues (see above at [39]) should be answered in the affirmative.[13]
[13] HB at pages 454-480.
Mayor Jacob disagrees and submits that when the 'full facts of the context of the debate [before the City's Council] are considered' the complaints should be dismissed. Further, Mayor Jacob submits that his case is distinguishable from Treby and Local Government Standards Panel [2010] WASAT 81 (Treby 2010).
Before considering each of the issues in turn, it is convenient to make reference to the relevant statutory provisions and principles that I will apply in determining this matter.

Applicable statutory provisions and principles

The relevant statutory provisions to be considered in this case are conveniently set out at [24] to [33] and [36] to [37] in Southwell and Local Government Standards Panel [2019] WASAT 128 (Southwell).
In addition to the statutory provisions, Part 7 of the Local Law sets out requirements for the conduct of members of the Council. Clause 7.14 of the Local Law relevantly provides:
7.14Adverse reflection and offensive language
(1)A member must not reflect adversely on a decision of the Council or a committee except on a motion that the decision be revoked or changed[.]
(2)A member must not:
(a)reflect adversely on the character or actions of another member or employee;
(b)impute any motive to a member or employee; or
(c)use an expression that is offensive or objectionable in reference to any other member employee or other person.
The relevant principles to be applied when considering a minor breach under the LG Act are set out in summary in Southwell at [38] to [39].
Finally, the Tribunal's powers on review are set out in Southwell at [37].
I turn, next, to consider whether Mayor Jacob contravened cl 7.14(2)(a) and cl 7.14(2)(b) of the Local Law on 17 November 2020. That will lead to the issues of whether Mayor Jacob's conduct in respect of the complaints constitutes an improper use of his office as a member of Council and if so, whether Mayor Jacob intended to cause detriment to any person.

Issues 5 and 12 whether on 17 November 2020 Mayor Jacob contravened cl 7.14(2)(a) of the Local Law

Mayor Jacob seeks a review of the Panel's decision that by his words at the OCM on 17 November 2020 (see above at [23]), he contravened cl 7.14(2)(a) of the Local Law which relevantly provides:
A member must not … reflect adversely on the character or actions of another member or employee[.]
(added emphasis)
In relation to the City's Council, the term 'member' is defined by referring to s 1.4 of the LG Act which provides that the mayor and councillors of the City are a member.

Reflect adversely

The term 'reflect adversely' is not defined in the Local Law or in the LG Act, and the term has not been the subject of any judicial determination in Western Australia.[14]
[14] In Treby and Local Government Standards Panel [2009] WASAT 224 (Treby 2009) the Tribunal had to consider cl 11 of the City of Wanneroo Standing Orders Local Law 2000 (Standing Orders) which uses the term 'reflect adversely'. The applicant's argument that the Standing Orders is a local law relating to procedure, rather than to conduct, and that it is inoperative because it is inconsistent with the LG Act was rejected by the Tribunal. It was not necessary for the Tribunal in that case to set out the proper construction of cl 11 of the Standing Orders.
According to the Macquarie Dictionary (online) the meaning of 'reflect' includes, relevantly:
5.to serve to cast or bring (credit, discredit, etc).
6.to think carefully; meditate on.
11.to serve or tend to bring reproach or discredit.
12.to serve to give a particular aspect or impression: his speech reflects badly on his candidacy.
13.to think, ponder, or meditate.
The term 'adverse' is defined in the Macquarie Dictionary (online) to include, relevantly:
1.antagonistic in purpose or effect: adverse criticism.
2.opposing one's interests or desire: adverse fate; adverse fortune; adverse influences; adverse circumstances.
3.being or acting in a contrary direction; opposed or opposing: adverse winds.
4.opposite; confronting: the adverse page.
Focus is required on the composite phrase 'reflect adversely' and not the individual words. Further, the meaning of the phrase 'reflect adversely' cannot be considered in isolation, but will take its flavour from the surrounding context, which includes what is the role of a member of Council, and in Mayor Jacob's case, what is involved in the role of a mayor, according to the LG Act, the Regulations and the Local Law. The role of a member of Council includes representing the interests of electors, ratepayers and residents of the City, providing leadership and guidance to the community in the district, and participating in the Council's decision-making processes at Council and committee meetings (s 2.10(a), (b) and (d) of the LG Act). The role of mayor includes presiding at meetings in accordance with the LG Act, providing leadership and guidance to the community in the district, and speaking on behalf of the local government (s 2.8(1)(a), (b) and (d) and s 2.8(2) of the LG Act).
Ordinarily, to 'reflect adversely', means that when someone is speaking that the words spoken are confronting, antagonistic, critical or contrary to the other person.
Attention needs to be on the effect of the words as perceived by a reasonable person, rather than the rigour or robustness of which a viewpoint is presented. Therefore, in my view, to 'reflect adversely' is more than just disapproving or disagreeing with the viewpoint of other members of Council. An elected member of Council may strongly disagree with another member without in doing so reflect adversely on the character or actions of the other member(s) of Council.
Therefore, in the context of the LG Act, the Regulations and the Local Law, in my view, an elected member of Council (councillor) will 'reflect adversely' on the character or actions of another member if the member makes a remark, comment or observation that relates to anything done by the other member, and that remark, comment or observation, would be perceived by a reasonable person[15] with the knowledge of the relevant facts of the case, as tending to lower a person in the estimation of his or her fellow members by making them think less of him or her. Put more simply, the question that I need to determine in respect of cl 7.14(2)(a) of the Local Law is this. Did Mayor Jacob say something about a member of Council which would make a reasonable person with knowledge of the relevant facts think less of that member? This is supported by Treby 2009 where the Tribunal stated at [19]:
A councillor is able to meaningfully participate in the good government of the persons in the district and to duly, faithfully, honestly and with integrity fulfil the duties of the office for the people in the district according to his or her best judgment and ability, without reflecting adversely upon the character or actions of, or imputing any motive to, another member or an officer of the local government. Indeed, good government requires courtesy amongst those elected to govern.

The nature of the words said by Mayor Jacob at the OCM on 17 November 2020

[15] Treby 2010 at [29] sets out who the reasonable person is when considering reg 7(1) of the Regulations to determine if a councillor has improperly used his or her office.

The Panel identified seven comments made by Mayor Jacob at the OCM on 17 November 2020 (the comments are in italics in the agreed facts set out above at [23]).[16]
[16] HB at page 28.
The intervener submits that when the exchange between Mayor Jacob and the other members of Council at the OCM on 17 November 2020 is considered as a whole, there are a number of comments made by Mayor Jacob that reflect adversely on the character or actions of other councillors, including comments to the effect that certain councillors who are also members of the Major Projects Committee (Committee) have:[17]
[17] HB at page 501.
a)been duplicitous and/or underhanded in their comparative treatment of the Lot 14077 issue as between meetings of the Committee and Council;
b)conducted themselves in a manner inappropriate for a Councillor;
c)taken selective parts of Council minutes and distributed them publicly in a manner apt to mislead;
d)contributed to false rumours about the future of Lot 14077, either by act or omission;
e)should be ashamed for contributing to false rumours about the future of Lot 14077;
f)displayed a disregard for good governance;
g)displayed a disregard for proper process;
h)displayed a disregard and lack for respect for their fellow elected members;
i)displayed a lack of respect of the community; and
j)displayed a lack of respect for the truth.
Further, the intervener submits that there were comments made by Mayor Jacob in relation to Cr Thompson that the motion she proposed was 'completely nonsensical' and that in bringing the motion Cr Thompson had breached protocol and demonstrated poor judgment.
Mayor Jacob relies on the 'truthful nature of his words' to dispute that he breached cl 7.14(2)(a) of the Local Law. Mayor Jacob accepts that his comments were a reflection but he strongly rejects that his comments were adverse as they were factual and neutral.[18]
[18] ts 38, 7 June 2022.
While I accept that Mayor Jacob believes that his comments were truthful, I do not accept his contention that he did not breach cl 7.14(2)(a) of the Local Law. There are three reasons for this. First, the Tribunal in Treby 2009 (see above at [61]) clearly states that councillors are expected to conduct themselves without any adverse reflection. Council is a deliberative corporate body and, it is therefore required to consider and discuss the motions and issues by qualitative argument. This is reflected in cl 7.14 of the Local Law which requires the members to focus on the issues before Council and not on the other members. In other words, members are required to limit their comments to the motion being debated.
Second, all members of Council including the mayor are fiduciaries of Council which requires them to act in the interest of Council and not to distract focus and bring Council into disrepute. This requires there to be no reflecting adversely by either the mayor or a member of Council.
Third, to 'reflect adversely' on the character or actions of another member is not affected by whether the comments made by Mayor Jacob are objectively true or accurate. What is necessary, is whether the comment(s) made by Mayor Jacob, would be perceived by a reasonable person with the knowledge of the relevant facts of the case, as tending to lower a person in the estimation of his or her fellow councillors by making them think less of him or her.
In my view, many of the comments made by Mayor Jacob as identified by the Panel (see above at [23]) are confronting, antagonistic or contrary to the other member(s) of Council. Therefore, in my view, many of the comments made by Mayor Jacob reflect adversely on other members of Council. Without referring to each of the comments identified by the Panel, the reasons as to why I conclude that many of Mayor Jacob's comments reflect adversely are as follows.
First, by the comments 'disregard all due process', 'breaches a number of protocols', 'disregard for proper processes' and 'such actions' (second, third, fifth and sixth comments) it is implied by Mayor Jacob that the motion was not bought for a proper purpose and that the proper processes were not followed by certain members of Council. Such comments go much further than a disagreement with the contents of the motion. By these comments, Mayor Jacob implies that certain members of Council did not follow appropriate processes for bringing a matter to Council.
Second, Mayor Jacob contends that by him identifying the conduct, without identifying the person(s), that is not done for the purpose of impugning the character of any person but rather in order to fulfill his responsibilities as an elected member of Council and as the Mayor. That cannot be accepted. The reasons for this is that the comment by Mayor Jacob that 'I do think shame on those who have been involved in orchestrating this' (comment 7) clearly calls for the relevant members of Council to be thought of less for their actions and for others to negatively judge those actions.
Third, by the fifth, sixth and seventh comments, Mayor Jacob implies that the actions of certain members of Council deliberately misled the public and therefore seek to lower the estimation of those members in the eyes of other councillors and the community.
Finally, I make the following comments regarding Mayor Jacob's statement that the motion introduced by Cr Thompson was 'completely nonsensical' (first comment). The intervener submits that in the context of the whole discussion or debate on the 'Lot 14077' issue, the words 'completely nonsensical' gives the impression that Cr Thompson had acted improperly, inappropriately or not in accordance with the role as a member of Council.
Mayor Jacob contends that the motion had already been addressed previously on 20 October 2020 by his strongly worded statement to Council[19], the City had released a statement to staff and an article was published in the local paper and that he had raised his concern, that the motion was poorly worded as it misled the community with regards to the City's true intentions, with Cr Thompson some days before the OCM on 17 November 2020.[20] Mayor Jacob says he explained to Cr Thompson that he supported part two of the motion as it would assist in allaying community concern about the 'Lot 14077' issue and made good sense from a governance perspective but that he did not support part one of her motion as it contained a direction that officers of the City cease doing an action which they were not performing. It is that aspect of the motion that Mayor Jacob's says was 'non sensical'.[21]
[19] HB at page 84.
[20] HB at page 74.
[21] HB at page 166.
I accept that in isolation, the words 'non sensical' do not amount to 'reflect adversely'. A reasonable person, with the knowledge of the duties, powers and authority of the position as a member of Council and the circumstances of the case where part one of the motion contained 'a direction that officers of the City cease doing an action which they are not performing' (which was not challenged by the intervener) would, in my view, conclude that part one of the motion was non sensical, in the sense that it was not possible to direct something not to be done when it was not being done. Seen in this light, in my view, Mayor Jacob's comment that the motion was 'non sensical' (part one of comment one) would not amount to 'reflect adversely'.
Mayor Jacob submits, by reference to McManus and Local Government Standards Panel [2019] WASAT 50 (McManus) and Hodson and Local Government Standards Panel [2019] WASAT 49 (Hodson) and Bradley and Local Government Standards Panel [2012] WASAT 44 (Bradley) that some level of adverse reflection is permissible if he as the Mayor is to be able to properly fulfill his statutory and electoral responsibilities.
Mayor Jacobs' position is that he was obligated to refute the 'campaign of misinformation' that was occurring and to outline the full context of the issues. This obligation, submits Mayor Jacob, arises under s 2.8(1)(b) of the LG Act as well as under the Local Law which requires elected members of Council to perform their duties 'in the best interests of the City uninfluenced by fear or favour' and 'to be open and accountable to the public'. In particular, Mayor Jacob contends that if he is unable to state that actions occurred, such as 'taken selective parts of the Council minutes and distributed them publicly in a manner apt to mislead', then he would be rendered unable to properly fulfill his statutory duties including under s 2.8(1)(b) of the LG Act which requires the mayor to 'provide leadership and guidance to the community in the district'. It is Mayor Jacob's submission that some flexibility is required if a mayor or councillor is to be able to properly fulfil their statutory and electoral responsibilities.
While I acknowledge that Mayor Jacob found himself in circumstances where his other attempts to address the alleged public controversy around the 'Lot 14077' issue had not been successful, I am unable to accept his submission that some level of adverse reflection is permissible in order to fulfill his statutory and electoral responsibilities as Mayor. The reasons for this are as follows. First, Mayor Jacob, like all members of Council, by cl 7.14 of the Local Law is not permitted to reflect adversely on other councillors.
Second, s 2.8 of the LG Act sets out the role of mayor and s 2.10 of the LG Act sets out the role of councillor as follows:
2.8. Role of mayor or president
(1)The mayor or president -
(a)presides at meetings in accordance with this Act; and
(b)provides leadership and guidance to the community in the district; and
(c)carries out civic and ceremonial duties on behalf of the local government; and
(d)speaks on behalf of the local government; and
(e)performs such other functions as are given to the mayor or president by this Act or any other written law; and
(f)liaises with the CEO on the local government's affairs and the performance of its functions.
(2)Section 2.10 applies to a councillor who is also the mayor or president and extends to a mayor or president who is not a councillor.
2.10.Role of councillors
A councillor -
(a)represents the interests of electors, ratepayers and residents of the district; and
(b)provides leadership and guidance to the community in the district; and
(c)facilitates communication between the community and the council; and
(d)participates in the local government's decision‑making processes at council and committee meetings; and
(e)performs such other functions as are given to a councillor by this Act or any other written law.
Section 5.21 of the LG Act deals with voting as follows:
5.21.Voting
(1)Each council member and each member of a committee who is present at a meeting of the council or committee is entitled to one vote.
(2)Subject to section 5.67, each council member and each member of a committee to which a local government power or duty has been delegated who is present at a meeting of the council or committee is to vote.
(3)If the votes of members present at a council or a committee meeting are equally divided, the person presiding is to cast a second vote.
(4)If a member of a council or a committee specifically requests that there be recorded -
(a)his or her vote; or
(b)the vote of all members present,
on a matter voted on at a meeting of the council or the committee, the person presiding is to cause the vote or votes, as the case may be, to be recorded in the minutes.
(5)A person who fails to comply with subsection (2) or (3) commits an offence.
In my view, nothing in either s 2.8, 2.10 or 5.21 of the LG Act supports Mayor Jacob's position that that some level of adverse reflection is permissible if he as the Mayor is to be able to properly fulfill his statutory and electoral responsibilities. While Mayor Jacob may take a different view on issues, it is incumbent on him as the mayor to treat all councillors fairly, to remain impartial in his conduct of the meeting and that he does not resort to adverse reflection on fellow councillors. This is supported by Treby 2010 at [88] where the Tribunal stated:
[U]nder s 2.8(1) of the LG Act, a mayor's role includes presiding at meeting of a council in accordance with the LG Act. In order to carry out that role, in a manner which facilitates the proper consideration and determination of council business, it is important that a mayor, as chairperson of a council meeting, remain impartial in his or her conduct of that meeting. That does not mean that a mayor is not permitted to express his or her own views about items of council business. It does, however, mean that a mayor should treat all councillors fairly, not show particular favours to council members, and should not resort to personal attacks on fellow councillors.
In addition, in Treby 2010 the Tribunal noted at [19] that the evidence given that 'the debate was no more than robust debate and was 'tame by any reasonable community standard'' was not to the point. The Tribunal went on to state at [19]:
The conduct of council debates has to be measured against the standards set by the Parliament through the LG Act, through the Regulations, and by the various instruments, including Standing Orders and Codes of Conduct, which are adopted by local governments themselves to regulate their own proceedings.
Third, while Mayor Jacob contends that he had exhausted all avenues in the weeks leading up to the OCM on 17 November 2020,[22] if he cannot inform the community when 'they are being misled, merely because stating the truth of the matter would reflect adversely on the people misleading the community' then he cannot fulfil his role as mayor, I find that it was open to Mayor Jacob, as submitted by the intervener, in the course of the Council meeting to move that cl 7.14 of the Local Law be suspended for the duration of the discussion of the 'Lot 14077' issues. Clause 14.1(1) of the Local Laws provides:
A member may, at any time, move that the operation of one or more of the clauses of this local law be suspended.
[22] ts 37, 7 June 2022 and HB at pages 103-104 and page 108.
Outside of the Council meeting, cl 7.14 of the Local Law does not operate. Therefore, in my view, cl 7.14 of the Local Law does not limit Mayor Jacob's ability to function outside of Council meetings or in relation to persons except for members of Council and employees of the City.
Fourth, the decisions in McManus, Hodson and Bradley do not assist Mayor Jacob. On his own admission, Mayor Jacob was addressing actions and statements which were more extensive and egregious than those in McManus and Hodson.[23] Bradley concerns reg 11 of the Regulations and Cr Bradley's failure to declare an alleged interest and his intervention in the debate before Council. The current proceedings do not concern reg 11 of the Regulations.
[23] HB at page 206.
McManus and Hodson concern a different Local Law. Both cases dealt with order 8.4(2) of the City of Nedlands Standing Orders Local Law 2009 (WA) which provides:
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[.]
Unlike cl 7.14(2)(a) of the Local Law, order 8.4(2) above does not use the words 'reflect adversely'.
In Hodson, the Tribunal was not willing to postulate as to whether reasonable members of the community might or might not find the descriptions of 'Scaffidiish' or 'Trumpish' to be offensive or objectionable. The Tribunal found there was no evidence that the statement made by Cr Hodson as reported in an [article in the Post] that Ms de Lacy had 'no capacity, no authority or ability to secure [underground power] at the best price' was either offensive or objectionable.
In McManus, the issue was not whether the advertisement was in fact a 'mistruth' or whether Ms de Lacy is 'someone who tells pork pies' but rather whether those comments were offensive or objectionable in reference to Ms de Lacy.[24] Ultimately, the Tribunal accepted that Cr McManus in using the word 'mistruth' was in fact trying to avoid using the words 'lie' or 'falsehood'.[25] The Tribunal accepted that Cr McManus, being the mover of the motion and then having to sum up, attempted to soften the comments of another councillor who had made the statement that the claim in the advertisement was a 'lie' by using rhyming slang and that Cr McManus in using the word 'mistruth' in moving the motion which he put to Council was a euphemism to avoid using the word 'lie'.[26]
[24] McManus at [58].
[25] Ibid at [60].
[26] Ibid at [62].
Both Hodson and McManus are distinguishable from the current proceedings. This is because Mayor Jacob has not used descriptions such as 'Scaffidiish' or 'Trumpish' and he has not sought to use words to soften comments made by other councillors.
Mayor Jacob also relies on Shannon and Local Government Standards Panel [2020] WASAT 50 (Shannon). In that case the Tribunal was considering a complaint that the applicant had made use of her office as Mayor to cast aspersions on the professional conduct of two former employees in an announcement at an ordinary meeting of the Council of the Town which was held on 28 August 2018 (announcement). In circumstances where there was significant public interest in what was occurring in the Town, specifically in respect of senior staff leaving and criticism in the press of the Council's lack of governance, the Tribunal noted at [52] that councillors are not free to engage in derogatory or personal attacks on fellow councillors or any other person.
The Tribunal worked through each of the 11 statements made in the announcement and found that Mayor Shannon committed one breach of reg 7(1)(b) of the Regulations when she said at the council meeting on 28 August 2018 that 'Mr [L] appears to have deleted some emails from his inbox and wiped his telephone prior to leaving despite the fact he was breaching the IT policy he introduced as Director of Corporate Services in April 2018'. The reasons given by the Tribunal were that the applicant ought to have known she had no authority to make the statement and that the applicant intended to cause Mr L detriment by inferring that he had acted improperly in deleting some emails and breached his obligations with respect to the Town's IT policy. The decision in Shannon reflects the particular facts and circumstances in that case.
In conclusion, although Mayor Jacob held genuine concerns as to the public perception of the 'Lot 14077' issue, a reasonable person, with the knowledge of the duties, powers and authority of the position of member of Council and the circumstances of the case, would conclude that the action taken by Mayor Jacob to make the comments (see above at [23]), apart from the first comment that Cr Thompson's motion was 'completely nonsensical', was inconsistent with the discharge of his duties arising from his office and thereby tending to lower the persons, the subject of the comments, in the estimation of his or her fellow members of Council and the community by making them think less of them and therefore constitutes adverse reflection by Mayor Jacob. This means that Mayor Jacob, in my view, contravened cl 7.14(2)(a) of the Local Law on 17 November 2020. A contravention of the Local Law is a breach of reg 4(2) of the Regulations (as it was) which relevantly provides:
The contravention of a local law as to conduct is a minor breach for the purposes of section 5.105(1)(b) of the [LG] Act.

Conclusion

[44] F.A.1 Insurances Ltd v Winneke (1982) 151 CLR 342 where Mason J held at [360] that 'The fundamental rule is that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power'.

Mayor Jacob's challenge to the Panel's decision was as to the merits of the decision. For the foregoing reasons, I am satisfied that the evidence in this case supports the conclusion that it is more likely than not that Mayor Jacob committed two breaches of reg 4 of the Regulations in relation to complaint SP 2021-021 and two breaches of reg 4 of the Regulations and two breaches of reg 7(1)(b) of the Regulations in relation to complaint SP 2021-023 by making improper use of his office as a councillor of the City to cause detriment to others. These breaches constitute a minor breach under s 5.105(1) of the LG Act. I would therefore affirm the decision of the Panel in relation to the minor breaches in each of complaint SP 2021-021 and complaint SP 2021-023.
The matter will now proceed to a directions hearing to make programming orders in respect of issues 7 and 16 (see also above at [40]) which provide:
Issue 7:If issues 1-6 are answered in the affirmative, how should any breaches of reg 4 of the Regulations by the applicant be dealt with under s 5.110(6) of the LG Act?
Issue 16:If issues 8-15 are answered in the affirmative, how should any breaches of reg 4 and 7 of the Regulations by the applicant be dealt with under s 5.110(6) of the LG Act?
Finally, enforcement of the decisions (see below orders 1 and 2) will continue to be stayed, pursuant to s 25(2) of the SAT Act, until further order of the Tribunal.

Orders

The Tribunal orders:
1.The decision of the respondent (Local Government Standards Panel) on 23 August 2021 in relation to SP 2021-021, that the applicant (Mayor Jacob) committed two minor breaches of the Local Government Act 1995 (WA) by two times contravening reg 4 of the Local Government (Rules of Conduct) Regulations 2007 (WA) is affirmed.
2.The decision of the respondent (Local Government Standards Panel) on 20 August 2021 in relation to SP 2021-023, that the applicant (Mayor Jacob) committed four minor breaches of the Local Government Act 1995 (WA) by two times contravening reg 4 and by two times contravening reg 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007 (WA) is affirmed.
3.Enforcement of orders 1 and 2 are stayed, pursuant to s 25(2) of the State Administrative Tribunal Act 2004 (WA) until further order.
4.The matter is adjourned to a further directions hearing on a date to be fixed not before 5 September 2022.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R PETRUCCI, MEMBER
1 AUGUST 2022