KUNZE and LOCAL GOVERNMENT STANDARDS PANEL - [2021] WASAT 159

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION:   KUNZE and LOCAL GOVERNMENT STANDARDS PANEL [2021] WASAT 159
MEMBER:   MS KY LOH, MEMBER
HEARD:   21 JULY 2021
DELIVERED          :   14 DECEMBER 2021
FILE NO/S:   CC 1517 of 2020
BETWEEN:   BENJAMIN KUNZE
Applicant
AND
LOCAL GOVERNMENT STANDARDS PANEL
Respondent
ATTORNEY-GENERAL OF WESTERN AUSTRALIA
Intervener

Catchwords:

Local government - Rules of conduct - Use of local government resources for purpose of persuading electors to vote in a particular way - Use of City email address to create and distribute e-newsletter

Legislation:

Local Government (Rules of Conduct) Regulations 2007 (WA), reg 8, Pt 2
Local Government Act 1995 (WA), s 5.103, s 5.104(1), s 5.104(7), s 5.105, s 5.105(1)(a), s 5.106, s 5.107, s 5.110(1)(a), s 5.110(2)(a), s 5.110(6), s 5.125, Div 9, Pt 5
State Administrative Tribunal Act 2004 (WA), s 17, s 27(1), s 27(2), s 27(3), s 29(3)(c)(ii), s 31
State Records Act 2000 (WA), s 3(1), s 16(1)(b), s 17, s 28, s 28(1), s 28(2), s 28(5), Sch 1

Result:

Application allowed in part

Category: B

Representation:

Counsel:

Applicant	:	R Graham
Respondent	:	No appearance
Intervener	:	F Cardell-Oliver

Solicitors:

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

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

R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13
R v Boynthon (1984) 38 SA SR 45
Re v Local Government Standards Panel [2015] WASC 51
Treby and Local Government Standards Panel [2010] WASAT 81; (2010) 73 SR (WA) 66
Yates v Local Government Standards Panel [2013] WASCA 8

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

In 2016, a council member of the City of Canning, Benjamin Kunze (the councillor), set up an electronic bulletin, the Bannister eBulletin, via a Mailchimp application to send information to his constituents in the Bannister Ward.
In February 2020, the councillor sent an electronic newsletter through the Bannister e-Bulletin about a candidate in an upcoming local byelection.
The Local Government Standards Panel received a complaint alleging that the councillor used his City email address to send out the 2020 enewsletter, which breached a rule of conduct prohibiting misuse of the City's resources for the purpose of persuading voters to vote for that candidate.
The councillor denies that there has been any offending use as he only used his City email address to verify the Mailchimp account. Further, he used the email address to direct replies in the Mailchimp process so as to ensure any response to the e-newsletter could be recorded by the City to meet state records requirements.
For reasons set out below, I find that whilst there has been a minor breach, there was little risk that any recipient would have been misled that the 2020 e-newsletter carried the imprimatur of the City. In the circumstances, I find it would be appropriate to order no sanction be imposed.

Issue for determination

The primary issue for determination is…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2021] WASAT 159
Decision Date

CaseChat Overview and Summary

The State Administrative Tribunal has allowed a review application in part in the case of Kunze and Local Government Standards Panel [2021] WASAT 159. Benjamin Kunze, a council member of the City of Canning, challenged a finding by the Local Government Standards Panel that he had contravened a rule of conduct, specifically reg 8 of the Local Government (Rules of Conduct) Regulations 2007 (WA), by using his City email address to create and distribute an e-newsletter, which the Panel found had the purpose of persuading electors to vote for a particular candidate in an upcoming local by-election. The Tribunal found that Kunze had committed a minor breach of the rule of conduct, but substituted the Panel's order of a public apology with an order that no sanction be imposed. The Tribunal concluded that there was little risk that any recipient would have been misled that the e-newsletter carried the imprimatur of the City. The Tribunal also found that Kunze's use of the City email address to create and distribute the e-newsletter was a relevant use of City resources, and that the dominant purpose of the e-newsletter was to persuade subscribers to vote for the endorsed candidate, contrary to the rule of conduct. However, the Tribunal considered the minor breach to be inadvertent, and found that an order of no sanction was the correct and preferable decision.

Orders