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 whether the councillor has committed a minor breach under s 5.105 of the Local Government Act 1995 (WA) (Act) by contravening a rule of conduct (namely reg 8 of the Local Government (Rules of Conduct) Regulations 2007 (WA) (Regulations)), and if so, what would be the appropriate order regarding sanction.
In considering the primary issue, the following secondary issues arise:
1)In creating and/or distributing the 2020 e-newsletter, has the councillor contravened a rule of conduct, namely reg 8 of the Regulations, by:
a)using, either directly or indirectly;
b)the resources of the City;
c)for the purpose of persuading electors to vote in a particular way at the Bannister Ward byelection.
2)If the answer to 1) is yes, what is the correct and preferable decision as to an order regarding sanction under s 5.110(6) of the Act?
Factual Background
The following factual background gleaned from the documents submitted by the parties is not in dispute.
The councillor was first elected as a council member of the City representing the Bannister Ward in October 2015 and was re-elected in October 2019.
In August 2016, the councillor, and another council member (councillor Hall) prepared and distributed at their own cost a hard copy local newsletter, the 'Bannister Bulletin'.
The first paragraph in that two page newsletter stated that both councillors will 'strive to keep [Bannister Ward residents] up-to-date with the Council's decision-making process, particularly in relation to issues affecting Bannister Ward residents'. At the bottom of the last page of the newsletter is a section on 'How to Contact Us', with contact details for both councillors, including their City email addresses.
Prior to its distribution, the councillor had sought comments on its appropriateness from the Chief Executive Officer of the City (CEO). The CEO replied on 29 July 2016 that he considered '[t]he bulletin looks great and does not put you or the council in conflict or in a bad position. In fact, it is a credit to you both for the active approach you are taking to your role'.
Both councillors later decided on or around December 2016 to distribute the Bannister Bulletin electronically through the Mailchimp service, which allows users to send emails to mailing lists.
The councillor set up a Mailchimp account for the 'Bannister eBulletin' using his City email address [email protected].
This was separate from the City's Mailchimp account, which did not have a mailing list for constituents of the Bannister Ward. In any event, none of the councillors had access to the City's Mailchimp account (nor its mailing lists).
The Bannister e-Bulletin e-newsletters are all created and distributed through the Mailchimp service provider, not from the City.
The councillor created the mailing list for the Bannister e-Bulletin by asking residents to provide their contact email addresses, which reached 210 subscribers at the relevant time. Notably, there were approximately 11,000 ratepayers in the Bannister Ward at the relevant time.
In December 2019, an extraordinary election (or by-election) was called upon councillor Hall's seat as councillor for the Bannister Ward being vacated when he was elected as mayor in October 2019.
On 16 February 2020, the councillor sent the 2020 e-newsletter, which contained the councillor's views of the candidacy of Ms Amanda Spencer, including the following statements:
a)A few local residents have contacted me recently to seek my feedback regarding who I believe would make a great Councillor.
b)My view - I really encourage you to consider voting for Amanda Spencer.
c)Having seen her advocacy first-hand, I can genuinely say that Amanda would be an excellent representative for the people of Riverton, Rossmoyne, Shelley and Willeton.
d)I encourage you to check out her Facebook, and even consider giving her a call to discuss the issues that matter to you. These are just my personal views regarding who I will be supporting, and I encourage you to do your own research and decide for yourself.
e)[at the foot of the newsletter]:
'My mailing address: [email protected]
…
*Please note* this newsletter is not an official publication of the City of Canning. The comments contained within it are the views of Councillor Kunze and not necessarily the views of the City of Canning or its Council.
On 1 April 2020, a complaint was lodged complaining that the 2020 enewsletter contravened reg 8 of the Regulations as the councillor had:
used the Bannister ward mailing list and/or his @canning.wa.gov.au account both the resources of the City of Canning - for the purpose of persuading electors to vote for Amanda Spencer during the Bannister ward by-election.
The complainant relied upon a copy of the 2020 e-newsletter sent to one subscriber which displayed the councillor's City email address in the 'From' field of the 2020 e-newsletter.
The City did not have a general policy relating to use of City email addresses during election periods, although, in respect of the election in October 2019, the CEO issued an email to councillors, which stated that conduct which could offend reg 8 of the Regulations relevantly extended to:
•use of City's dedicated email service. If an elected member receives an email from an elector in relation to an electoral matter on their dedicated City email address their reply must be on their personal email account.
The CEO advised that the City did not authorise the councillor to use his City email address for the purpose of persuading electors to vote for Ms Spencer during the Bannister Ward by-election.
Upon learning of the complaint, the councillor created a private email account [email protected] and registered that address in lieu of his City email address as the email address associated with the Bannister e-Bulletin Mailchimp account.
On 12 August 2020, following receipt of the councillor's submissions and the City's advice set out in [22]-[23], the Panel found that the councillor had contravened reg 8 of the Regulations and thereby committed a minor breach.
On 7 October 2020, following receipt of the councillor's submissions, the Panel decided to order that the councillor make a public apology at the City's ordinary council meeting first occurring after the expiration of 28 days from the date the order was served on the councillor.
The councillor became aware that the complainant had communicated with a news journalist about the Panel's decision, and had provided a copy of the Panel's finding of the minor breach and decision on sanction to the CEO and all councillors of the City in December 2020. He also became aware of a comment made by an expresident of the Riverton Rossmoyne & Shelley Residents Association about the Panel's decision.
On 16 November 2020, the councillor applied to the Tribunal for review of the Panel's decision.
The councillor's case
The councillor gives evidence by way of witness statements filed with the Tribunal and short oral testimony about setting up the Mailchimp account of the Bannister e-Bulletin and creating the 2020 enewsletter.
There is no challenge to his evidence as to facts, and I accept that he has given evidence truthfully and honestly.
The councillor says that I am confined to reviewing the issue of whether the breach, as specifically alleged in the complaint, occurred.
That is, as the complaint alleged use of resources for the purpose of persuading electors to vote for a candidate during the by-election, and not more generally for 'other' unauthorised purposes, I am not to look into whether the councillor's use of City resources is for any other unauthorised purpose.
The councillor says Mailchimp only used his City email address for validation or verification of the domain, and for setting up the account. It was not used to send out emails, and the need to verify a domain occurs only once. Newsletters can be sent with any other email address and allows the changing of email addresses at any time.
The councillor has not purposefully used his City email address to log into Mailchimp to create the e-newsletters as he is permanently logged in on his computer.
Further, the councillor was unaware that recipients were able to view his email address in the 'From' field of the e-newsletter, as the Microsoft default setting only displays the sender's name in the 'From' field, and a recipient will have to take manual steps to show the text and characters comprising his email address.
Furthermore, whilst the councillor accepts that the e-newsletter, when forwarded, will display an email address in the 'From' field, he understood that email address to be a Mailchimp generated address (for example [email protected] or [email protected]).
In support of his submissions, the councillor relies upon a different copy of the 2020 e-newsletter received by another subscriber, which only displayed the councillor's name in the 'From' field of the enewsletter.
The councillor demonstrated, in oral testimony, that a recent function of Mailchimp allows the creator to nominate an email address to which recipients can reply. This field is pre-filled, but creators can manipulate this field. He believed that this recent function was present at the time he created the 2020 e-newsletter, but had thought that even if the replies were sent to his City email address, that Mailchimp would mask that address with a Mailchimp generated address.
The Bannister Bulletin publication was only intended to provide relevant information to the local residents about council decisions and the councillor's own activities as the local ward councillor, and not for electioneering purposes.
As to the 2020 e-newsletter, the councillor wanted to highlight to his subscribers that there was an extraordinary meeting being held in the Bannister Ward and to increase community awareness about byelections (by including information on the election in the 'FAQs' and a link to the Western Australian Electoral Commission website about other candidates).
The councillor provided commentary about who he was intending to support personally as he had been asked by friends, family and followers, but asserts that this was not the purpose of the email. He encouraged his subscribers to do their research and included a disclaimer (as set out in [19(e)] above).
The councillor says that council members do not have access to the City's TRIM document and records management system. As such, they were advised by staff to endeavour to facilitate correspondence through their City email address which is stored and backed up on the City's servers, ensuring the City was compliant with its responsibilities under the State Records Act 2000 (WA) (Records Act).
The councillor accepts that correspondence through the Bannister eBulletin does not strictly fall within the class of records required to be retained under the City's record keeping plan, but contends that the plan should be read to include retention of communications and transactions of elected members that constitute evidence affecting the accountability of the council and the discharge of its business.
The councillor also relies on the training he received at a WA Local Government Association (WALGA) course about 'Serving on the Council', where one of the slides in a powerpoint presentation at which he attended referred to the need to use a local government email address.
The Panel's role and the intervener's submissions
The Panel filed all documents which were relevant to the proceedings, and otherwise did not play an active role in the proceedings.
This is appropriate given the risk that it would endanger the impartiality with which the Panel is expected to maintain in the event that I invite, or send the matter back for, reconsideration of its decision under ss 31 or 29(3)(c)(ii) of the State Administration Tribunal Act 2004 (WA) (SAT Act) respectively: see Treby and Local Government Standards Panel [2010] WASAT 81; (2010) 73 SR (WA) 66 at [16] and R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 at 35-36.
I am grateful for the assistance of the Attorney-General, as intervenor, to act as a contradictor in these proceedings.
In summary, the intervener agrees with the councillor that I am confined to considering whether the alleged breach occurred as set out in the complaint.
The intervener withdrew his submissions that the councillor's City email address indicated at the bottom of the 2020 e-newsletter could contravene reg 8 of the Regulations, accepting such use as appropriate.
The intervener submits that the councillor's use of his City email address in verifying the Mailchimp account and sending the 2020 enewsletter could constitute a relevant use for the purpose of persuading electors which offends reg 8 of the Regulations.
Further, the e-newsletters were not records created in the course of the councillor's work for the purposes of the Records Act because they did not relate to his role in controlling or managing the council. In any event, even if they were, the City's approved record keeping plan only contemplates emails to be retained and uploaded to TRIM.
As to the question of sanction, the intervener accepts that the minor breach was inadvertent and is likely to have little to no practical consequence, and that there is no need for an element of specific deterrence in relation to the councillor.
Legislative framework
Local Government Act
At all relevant times, Div 9 of Pt 5 of the Act relevantly provides for the conduct of council members to be subject to a code of conduct and, where prescribed, rules of conduct and general principles to guide the behaviour of council members: ss 5.103, 5.104(1) and 5.104(7) of the Act.
A breach by a council member of a prescribed rule of conduct constitutes a minor breach: s 5.105(1)(a) of the Act.
A complaint about an alleged 'minor breach' can be made to the complaints officer, who must then forward the complaint to the appointed member of the primary standards panel: s 5.107 of the Act.
The appointed member of the primary standards panel must then allocate that complaint to a standards panel: s 5.110(1)(a) of the Act.
Significantly, the local government standards panel must make a finding as to whether the breach alleged in the complaint occurred: s 5.110(2)(a) of the Act.
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 (s 5.106 of the Act).
If a local government standards panel finds that a council member has committed a minor breach, the breach is to be dealt with by making orders in accordance with s 5.110(6) of the Act, which includes a public apology as well as no sanction be imposed.
Rules of conduct
At all relevant times, Pt 2 of the Regulations prescribes the rules of conduct which apply to council members.
Regulation 8 of the Regulations provides that a council member must not either directly or indirectly use the resources of a local government:
(a)for the purpose of persuading electors to vote in a particular way at an election, referendum or other poll held under the Act, the Electoral Act 1907 (WA) or the Electoral Act 1918 (Cth); or
(b)for any other purpose,
unless authorized under the Act, or authorized by the council or the CEO, to use the resources for that purpose.
State Records Act
Under s 17 of the Records Act, a 'government organization' and a 'government organization employee' of the organization must comply with a government organization's record keeping plan.
A 'government organization' is defined under s 3(1) of the Records Act as an organization in Sch 1 to the Records Act, which includes a local government such as the City.
A 'government organization employee' is relevantly defined under s 3(1) of the Records Act to mean a person who, whether or not an employee, alone or with others governs, controls or manages a government organization.
A 'record keeping plan' in respect of a government organization is, relevantly, a record setting out how the organization is to keep its government records: s 16(1)(b) of the Records Act.
'Government record' is defined to mean a record created or received by a government organisation employee in the course of the employee's work for the organization.
A government organization may review its record keeping plan at any time, although it must review its plan whenever there is any significant change to the organization's functions: s 28(1) and 28(2) of the Records Act.
Not more than five years is to elapse between the approval of the record keeping plan and a review of it or between one review and another: s 28(5) of the Records Act.
Tribunal jurisdiction
The councillor seeks a review under s 5.125 of the Act of the Panel's finding of a minor breach and the Panel's decision to make an order of sanction under s 5.110(6) of the Act.
Section 5.125 of the Act provides that a party may apply for a review of a decision of standards panel, which term 'decision' is defined as a decision to make an order under s 5.110(6) of the Act.
Under s 17 of the SAT Act, if a matter that an enabling Act gives the Tribunal jurisdiction to deal with is a matter that expressly or necessarily involves a review of a decision, the matter comes within the Tribunal's review jurisdiction.
In this case, the phrase 'a decision to make an order' in s 5.125 of the Act is a slight misnomer, as the Panel has no discretion about making an order under s 5.110(6) of the Act once breach has been found. Proper effect can only be given to s 5.125 if it is read (as I do in this case) as necessarily involving the review of both the decision on breach and the decision under s 5.110(6).
This is consistent with the approach taken by the courts in dealing with appeals of the Tribunal's decisions on review of the Panel's decisions: Yates v Local Government Standards Panel [2013] WASCA 8; Re v Local Government Standards Panel [2015] WASC 51 (Re).
Finally, the purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review: s 27(2) of the SAT Act. The review is not confined to matters that were before the Panel but may involve the consideration of new material whether or not it existed at the time the decision was made: s 27(1) of the SAT Act. Nor is the review limited to the reasons for decision or grounds for review set out in the application: s 27(3) of the SAT Act.
Primary issue - whether the councillor committed a minor breach, and if so, what order regarding sanction
I agree with the councillor's and the intervener's contentions that my enquiry into breach under s 5.110(2)(a) of the Act is confined to whether the breach as alleged in the complaint occurred: Re at [24].
As the complaint alleged that the use of the City's resource was for the purpose of persuading electors to vote in a particular way, I cannot open up the enquiry to whether the alleged use could also be prohibited under reg 8 of the Regulations on the basis that it was for an unauthorised purpose.
Secondary issue 1(b) - 'resource'
The councillor's City email address can be considered a 'resource' in two senses - the text comprising the email address and the 'dedicated email service' provided by the City supporting the email address.
In the Macquarie Dictionary Online (as at 14 December 2021), 'resource' is relevantly defined as:
1.a source of supply, support or aid.
2.…
3.a source of information.
4.(often plural) the collective wealth and assets of a country, organisation, individual, etc.
5.(often plural) money, or any property which can be converted into money; assets[.]
In my view, an email address represents a form of support to those who have access to use the email address to send or receive email correspondence.
Additionally, whilst it may seem too generous an interpretation to consider the text comprising a City email address to be a 'resource' in and of itself, in this case, it is the representation of the licence to access the City's 'dedicated email service', rather than solely the text itself, that constitutes the 'resource'.
Hence, should the councillor's City email address cease to be functional to grant access to the City's dedicated email service, it ceases to be a resource as it ceases to be a functional or valid email address.
I find that the City email address, both in its representative sense and in the sense of providing actual access to the email service, is a 'resource' of the City within the meaning of reg 8 of the Regulations.
Secondary issue 1(a) – 'use' of resource
The term 'use' is relevantly defined in the Macquarie Dictionary Online (as at 14 December 2021) as:
1.to employ for some purpose; put into service; turn to account: use a knife to cut; use a new method.
2.to avail oneself of; apply to one's own purposes: use the front room for a conference.
The relevant 'use' of the councillor's City email address which could offend reg 8 in this case is its employment or application to create and distribute the 2020 e-newsletter.
The steps that led the councillor to create or distribute the 2020 enewsletter included:
a)using his City email address to verify the Mailchimp account, through which the 2020 e-newsletter was ultimately sent;
b)using his City email address as a 'reply-to' email address in creating the 2020 e-newsletter; and
c)identifying his City email address in the 2020 enewsletter itself (for example, in the footer of the email, and at least in one instance, in the 'From' field).
Given the broad meaning of the term 'use', which could include indirect uses under reg 8 of the Regulations, it is not necessary to confine the enquiry to overt applications of the councillor's City email address.
As such, it is not determinative how, and how many, others are able to view the councillor's City email address in the 'From' field - it is sufficient that his City email address was used to create and distribute the 2020 e-newsletter through setting up the Mailchimp account and creating the actual e-newsletter.
In any event, I consider that there was implicit authorisation by the CEO for explicit references to the councillor's City email address in the 2020 e-newsletter.
The visibility of the councillor's City email address in the hard copy of the Bannister Bulletin was expressly approved by the CEO in 2016; as such, it is taken that there is implied approval for any further explicit references to use of the City email address within the enewsletter such as in the 'From' field. The City's elections policy referred to in [22] does not prohibit reference to a City email address, only to use of the City's dedicated email service. Furthermore, the policy only directs a council member to reply to, but nothing on receiving, an elector's email from a personal email account.
I am however satisfied that, by use of the councillor's City email address in creating and distributing the 2020 e-newsletter (to verify the Mailchimp account and then specifically in creating the 2020 enewsletter), there has been requisite use for the purpose of reg 8 of the Regulations.
To be clear, with respect to the verification of the Mailchimp account which occurred in 2016, the relevant offending use of the councillor's City email address is in the distribution of the 2020 enewsletter through the Mailchimp account which continues to rely upon on his City email address. As such, the time constraints for the lodging of the complaint applies at the time the 2020 e-newsletter was distributed through the Mailchimp account.
That the Mailchimp application continues to rely on the councillor's City email address is reflected in the councillor's evidence that he is permanently logged into the application and does not have to purposefully use his City's email address. To the extent that there is even reliance on his City email address to log-in (which is only negated in the present case because the councillor has opted to be permanently logged in), this indicates that Mailchimp continues to rely on the City's email address to maintain the account.
Secondary issue 1(c) - 'for the purpose of persuading electors to vote in a particular way'
The councillor has sought to rely on an expert report by an electorate manager for a Federal Member of Parliament, who has worked on several campaigns as election adviser, to opine on whether the 2020 enewsletter was for the purpose of persuading electors to vote in a particular way at an election.
I have not taken into consideration the contents of the expert report as I am not satisfied that the purpose of an e-newsletter is one which requires an expert opinion; rather, it is one for which ordinary persons are 'able to form a sound judgment … without the assistance of witnesses possessing special knowledge or experience in the area': R v Boynthon (1984) 38 SA SR 45 at 46-7.
The councillor does not contest that at least some of the subscribers to the Bannister e-Bulletin would have been electors in the Bannister Ward by-election.
Having decided that use of the councillor's city email address to create and distribute the 2020 enewsletter is a relevant use of City resources, I need to decide on the purpose of that use.
I accept that the genesis of the Bannister e-Bulletin is to inform and communicate with residents in the Bannister Ward, which includes informing them about the by-election. However, the tenor of the 2020 enewsletter would leave an ordinary reader in no doubt that the councillor is providing an endorsement, albeit personal, for that candidate. The subject of the e-newsletter is confined to the byelection, and there is no reference to any other candidates.
The requisite purpose under reg 8 of the Regulations draws no distinction between whether an elector would understand an endorsement as one provided in a personal or official capacity.
Notwithstanding the councillor's invitation for a reader of the 2020 enewsletter to undertake his or her own investigation, the directed focus on one particular candidate leads me to find that a dominant, if not primary purpose of the e-newsletter is to persuade the subscribers to vote for the endorsed candidate, contrary to reg 8 of the Regulations.
Further, I am not satisfied that the use of the councillor's City email address for record-keeping objectives could be justified as an authorised use or purpose under the Act, or by the council or the CEO.
Firstly, the councillor does not dispute that his application of his City email address to verify the Mailchimp account was not required to meet record-keeping obligations.
Secondly, the councillor was not under an obligation under the Records Act to direct replies to his 2020 e-newsletter to the City's dedicated email service.
The City's record-keeping plan requires emails to be saved to the City's TRIM system but does not require emails to be saved by directing replies to the City's dedicated email service. Whilst I accept the councillor received anecdotal advice from the City's staff about using their City email address in correspondence, there has been no formal recognition of this in the City's record keeping plan, nor has such advice been established as authorisation by the Council or the CEO.
Further, the record-keeping plan only requires council members to create and keep records of the performance of member functions arising from their participation in the decision-making processes of Council and Committees of Council.
The 2020 e-newsletter was clearly not sent as part of the Council's or a Committee's decision-making process - indeed, that is expressly disavowed in the e-newsletter given the contents of the e-newsletter hold only the personal views of the councillor.
I find that there is no scope for extending the clear words of that record keeping plan to correspondence that may be received in reply to newsletters in an electronic bulletin voluntarily managed by a councillor.
To the extent that there is any criticism that the City's record keeping plan has not been reviewed for seven years, I find the terms of s 28 of the Records Act to be somewhat equivocal on the requirement for review. On one hand, s 28(1) gives the City full discretion as to whether to review its plan (subject to a mandatory review under s 28(2) where there is any significant change to its functions); on the other hand, s 28(5) suggests that a review of a plan must be undertaken within five years of its approval or last review.
It is not necessary to reconcile the uncertainty in s 28 of the Records Act as I find that, whether or not the plan has been updated, this does not give licence to adopt an interpretation such as that advanced by the councillor that does not arise from the plain terms of the plan.
Finally, the councillor's reliance on the WALGA training course slide is, with respect, misplaced. The slide was part of a session relating generally to elected member communications and cannot be relied upon to exempt a council member from complying with a rule of conduct.
I am therefore satisfied that the purpose of the councillor's use of the City's email address, to create and distribute the 2020 e-newsletter, meets the relevant test of persuasion under reg 8 of the Regulations.
Secondary issue 2 - correct and preferable sanction
Whilst I have found in this case that the councillor has committed a minor breach by contravening reg 8 of the Regulations, I am satisfied, based on the following considerations, that an order that no sanction be imposed is the correct and preferable decision:
a)there is no evidence that any of the recipients of the 2020 e-newsletter considered that the message in the enewsletter was approved or endorsed by the City. I find that any risk that the 2020 e-newsletter will be perceived to carry the imprimatur of the City is minimal, given the heavy disclaimer within the body and footer of the 2020 e-newsletter that these are the councillor's personal views;
b)the audience of the Bannister e-Bulletin is relatively confined (210 out of a possible 11,000 electors at the relevant time), some of whom may not even be electors given they are friends and family of the councillor; and
c)the councillor has endured some effects of a public apology with the disclosure of the Panel's decision to (at least) the CEO and all councillors of the City.
Conclusion
On balance, for reasons set out above, I find that the councillor has committed a minor breach by breaching reg 8 of the Regulations, and that it should be dealt with by making an order that no sanction be imposed.
I will allow the application in part, set aside the Panel's order made on 7 October 2020 and substitute it with an order that no sanction be imposed.
Orders
The Tribunal orders:
1.The application for review of the respondent's decision is allowed in part.
2.The order of the respondent dated 7 October 2020 is set aside and substituted with an order that no sanction be imposed in accordance with s 5.110(6) of the Local Government Act 1995 (WA).
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS K Y Loh, MEMBER
14 DECEMBER 2021
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