MATHESON and LOCAL GOVERNMENT STANDARDS PANEL
[2020] WASAT 26
•4 MARCH 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION: MATHESON and LOCAL GOVERNMENT STANDARDS PANEL [2020] WASAT 26
MEMBER: DR B DE VILLIERS, MEMBER
HEARD: 5 FEBRUARY 2020
DELIVERED : 4 MARCH 2020
FILE NO/S: CC 1158 of 2019
BETWEEN: JULIE CHRISTINE MATHESON
Applicant
AND
LOCAL GOVERNMENT STANDARDS PANEL
Respondent
ATTORNEYGENERAL OF WESTERN AUSTRALIA
Intervener
Catchwords:
Local Government Standards Panel - Conduct of councillor - Writing of letter to newspaper - Decision by local government council to exclude public from meeting - Referring to incorrect sub-section to exclude public - Use of word 'paranoid' to describe actions of fellow councillors - Right to freedom of political communication
Legislation:
Local Government (Rules of Conduct) Regulations 2007 (WA), reg 7(1)(b)
Local Government Act 1995 (WA), s 5.23(1), s 5.23(2), s 5.23(2)(e)(iii), s 5.110(6), s 5.125
State Administrative Tribunal Act 2004 (WA), 2 29(3)(a), s 31
Result:
Review successful
Decision set aside
Category: B
Representation:
Counsel:
| Applicant | : | AP Rumsley |
| Respondent | : | N/A |
| Intervener | : | E Negus |
Solicitors:
| Applicant | : | In Person |
| Respondent | : | N/A |
| Intervener | : | State Solicitor's Office |
Case(s) referred to in decision(s):
King and Local Government Standards Panel [2018] WASAT 42
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13
Ryan and Local Government Standards Panel [2009] WASAT 154
Treby and Local Government Standards Panel [2010] WASAT 81
Yates and Local Government Standards Panel [2012] WASAT 59
REASONS FOR DECISION OF THE TRIBUNAL:
Background
This proceeding concerns a review of a decision dated 27 March 2019 by the Local Government Standards Panel (Panel). The Panel found on 27 March 2019 that Councillor (Cr) Julie Christine Matheson (the applicant) had committed a minor breach of reg 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007 (WA) (LG Regulations) when she wrote a letter to the (Subiaco) Post, a community newspaper, on 8 September 2018 (Letter), in which she criticised the Council of the City of Subiaco (City or Council) and members of the Council for their conduct which she described as 'paranoia'.
A complaint about the applicant was lodged by Cr Jodi Mansfield. The applicant was ordered by the Panel on 8 July 2019 to apologise and is now seeking a review of both the decisions.
The applicant and the AttorneyGeneral of Western Australia (Intervener) agree that the circumstances of the matter are unique and not easily comparable to other decisions determined under the LG Regulations.
Much of the hearing focused on the word 'paranoia' used by the applicant in the Letter to describe the workings and conduct of the Council and the decision of the Council at its meeting on 28 August 2018 (Meeting), to exclude the public from discussions of an agenda item concerning a planning matter.
The applicant says that in the context of events that preceded the writing of the Letter the use of the word 'paranoia' was reasonable, whereas the Intervenor says that, regardless of the context in which the applicant found herself, the use of the word is unacceptable and constitutes a minor breach of the LG Regulations.
The Intervener agrees that the applicant, in her own mind, had reasonably formed the opinion that the Council had been conducting some of its business in an increasingly secretive manner; that certain councillors had displayed a pattern of what appeared to be so called 'block voting'; and that the decision at the Meeting to exclude the public from attending a planning matter was referenced to an incorrect subsection of the Local Government Act 1995 (WA) (LG Act) regardless of the applicant having repeatedly drawn the error to the attention of the Chief Executive Officer (Ms Rochelle Lavery) (CEO), the Mayor (Cr Penny Taylor) and fellow councillors.
The Intervener also accepts that at a preparatory meeting prior to the Meeting, Cr Hugh Richardson also raised his concern that there was no power to exclude the public pursuant to the sub-section of the LG Act relied upon. The Intervener emphasises however that regardless of the state of mind of the applicant the use of the language in the Letter was inappropriate.
The Panel is not an active party to the proceeding since it had completed its function as a complaint body (R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13).
The AttorneyGeneral of Western Australia sought to intervene and leave was granted. The Intervenor is assisting the Tribunal and is not acting on behalf of the Panel (Treby and Local Government Standards Panel [2010] WASAT 81 at [16]).
Issues to be determined
At the commencement of the hearing the parties agreed that the following issues had to be determined by the Tribunal:
1)Does the incorrect reference by the Council to the appropriate section of the LG Act to justify the exclusion of the public from the Meeting bear relevance to this review, and if so, what is the possible impact thereof on the outcome?
2)Did the Letter constitute an improper use of the office of the applicant as an elected councillor?
3)If yes, was the Letter intended to cause detriment to the Council and fellow councillors?
4)If yes, should a sanction be imposed on the applicant?
5)If yes, what is the appropriate sanction?
The Letter
The Letter is quoted in full below:
Closed doors reveal paranoia
No wonder the POST is the most awarded suburban newspaper in Perth. What we read in it about Subiaco council is correct and disturbing.
In just 10 months, it has gone from being open, transparent and community-minded to a council with a voting block and unprecedented paranoia which has led to decisions made in secret, numbered documents, affidavits, and legal advice to suit some of the worst governance decisions in recent history.
Last week residents and the media were locked out from witnessing the council's decision on a SAT appeal on a development affecting residents in Keightley Road, Shenton Park.
Instead of following the lead from the state government's development assessment panels to welcome the public to its meetings from a SAT appeal, paranoia prevailed with six elected members voting to lock the doors and exclude the public.
I walked out with the pubic in protest at the paranoia consuming the council.
(Councillor) Julie Matheson, Coghland Road, Subiaco
Statutory framework
The applicant is seeking a review of the Panel's decision pursuant to s 29(3)(a) and s 31 of the State Administrative Tribunal Act 2004 (WA). Under s 5.125 of the LG Act the person who made the complaint as well as the person about whom the complaint was made, can seek a review of the Panel's decision.
Section 5.110(6) of the LG Act
This subsection provides that the Tribunal is to deal with a minor breach by dismissing the complaint or ordering that the person is publically censored; the person apologises publically; and/or the person undertakes training.
Regulation 7(1)(b) of the LG Regs
Regulation 7(1)(b) of the LG Regs provides as follows:
A person who is a council member must not make improper use of the person's office as a council member to cause detriment to the local government or any other person.
Policy Manual - Council Member Code of Conduct
The City of Subiaco Policy Manual Code of Conduct For Elected Members, Committee Members (October 2017) (Code) provides, relevantly, in part 4.1(a):
Council members … will:
…
•perform their duties impartially and in the best interests of the City of Subiaco uninfluenced by fear or favour;
•act in good faith (i.e. honestly, for the proper purpose, and without exceeding their powers) in the interests of the City of Subiaco and the community'
•make no allegations which are improper or derogatory (unless true and in the public interest) and refrain from any form of conduct, in the performance of their official and professional duties, which may cause any reasonable person unwarranted offence or embarrassment'; and
•always act in accordance with their obligation of fidelity to the City of Subiaco.
The Code provides, relevantly, in part 4.1(b) that '[c]ouncil members will represent and promote the interests of the City of Subiaco, while recognising their special duty to their own constituents'.
The Code provides, relevantly, in part 4.6(b)(ii) that council members:
As a representative of the community … need to be not only responsive to community views, but to adequately communicate the attitudes and decisions of council. In doing so council members should acknowledge that:
•as a member of the council there is respect for the decision making processes of the council which are based on a decision of the majority of the council;
•information of a confidential nature ought not be communicated until it is no longer confidential;
•information relating to decisions of the council on approvals, permits and so on ought only be communicated in an official capacity by a designated officer of council;
•information concerning adopted policies, procedures and decisions of the council is conveyed accurately.
Hearing de novo
The hearing is a hearing de novo. This means that the information that was available to the Panel as well as any additional information that has since become available, may be taken into account. Although there is no onus of proof on the Intervener, the Tribunal must as far as factual disputes are concerned be satisfied that a certain factual finding can be made on the basis of the civil test, meaning that it is more likely than not that a certain fact exists. If there are competing versions of an event, the Tribunal must be satisfied that one version is more likely to be the correct version. The Intervener is not under any burden, but assists the Tribunal in its determination of facts upon which the ultimate decision can be based.
The Tribunal notes the internal investigation commissioned by the CEO and the subsequent report by Mr Brendon Peyton as well as the findings of the Panel. The report by Mr Peyton dated 11 September 2018 (Peyton report) is, in essence, largely hearsay and no weight is attached to it. It is noted, however, that the Peyton report seemed to have failed to investigate the primary concern of the applicant namely that the exclusion of the public at the Meeting was pursuant to an incorrect subsection (see 'Conclusion' on page 11 of the Peyton report).
The findings of the Panel are superseded by this being a de novo proceeding. It is however noted that the Panel did not give due consideration to the concern of the applicant that the exclusion of the public was pursuant to an incorrect sub-section. Both the Peyton report and the Panel focused on the use of the word 'paranoia', without giving adequate consideration to the context in which the word was used.
The Tribunal is not constrained by or limited to the material that was before the Panel or the manner in which the material was assessed by the Panel; or the findings or orders of the Panel.
In this proceeding the Intervener greatly assisted the Tribunal and acted consistently with its role as a model litigant.
Neither the City of Subiaco nor the complainant is a party to this proceeding.
What is agreed
The parties agreed at the commencement of the hearing to the following:
1)The applicant was a member of the Council when she authored the Letter that appeared in the Post newspaper on 8 September 2018 under the heading 'Closed doors reveal paranoia'; she did not choose the heading of the Letter; the publisher of the newspaper did. The Letter was sent in the applicant's capacity as a councillor and principally concerned the Meeting. Agenda item (C13.1) at the Meeting considered a planning issue whereby the City was invited by the Tribunal to reconsider a previous refusal by the Council of a planning application. The meeting of the Council during which the original planning application was considered had been open to the public. The Council decided at the Meeting that agenda item C13.1 had to be discussed to the exclusion of the public.
2)The notice of the Meeting proposed that agenda item C13.1 would be discussed to the exclusion of the public pursuant to s 5.23(2)(e)(iii) of the LG Act. This subsection deals with information about the business, professional, commercial or financial affairs of a person.
3)Prior to each council meeting, an Agenda Briefing Forum (Forum) is held at which the business of the upcoming meeting is discussed by the CEO, Mayor and councillors and issues can be clarified. All councillors are invited to attend the Forum. Cr Richardson raised a concern at the Forum that was held on 24 August 2018, namely that s 5.23(2)(e)(iii) was not appropriate for the exclusion of members of the public in regard to the planning issue under consideration. The agenda remained unchanged.
4)The applicant wrote on 27 August 2018 and again on 28 August 2018 to the CEO, enquiring why that particular agenda item should be discussed to the exclusion of the public. The emails were copied to the Mayor and all councillors. In her email of 27 August 2018 to the CEO, the applicant noted that, in her view, s 5.23(2)(e)(iii) of the LG Act does not justify the exclusion of the public for the matter under discussion. She said it is an 'incorrect interpretation' of the LG Act. Neither the CEO nor the Mayor responded to the two enquiries of the applicant.
5)The applicant repeated her objection during the Meeting, namely that s 5.23(2)(e)(iii) of the LG Act was incorrectly being relied upon to exclude members of the public from the deliberations of the Council in regard to the planning matter. The Council nevertheless voted to proceed to exclude the public on the basis of s 5.23(2)(e)(iii) of the LG Act. The applicant left the Council Chambers without casting a vote.
6)The minutes of the Meeting were put to the Council for confirmation on 4 September 2018. The applicant again raised her concern that the minutes were incorrect since it sought to rely on s 5.23(2)(e)(iii) of the LG Act to have excluded the public from the Meeting. The mover and seconder of the motion to confirm the minutes withdrew. The minutes were therefore not confirmed.
7)The applicant wrote the Letter the subject of this proceeding soon after the conclusion of the 4 September 2018 meeting. The Letter appeared in the Post newspaper on 8 September 2018.
8)A reader of the Letter would not, at the time of publication, have been able to ascertain who the councillors were who voted for the resolution the subject of this proceeding since the minutes of the Meeting had not yet been confirmed and the names of the councillors who supported the resolution had therefore not been made public.
9)In the same edition of the Post newspaper dated 8 September 2018, and on the same page as the Letter, another councillor published a letter under the heading 'Subi affidavit mystery' in which Cr Stephanie Stroud took issue with affidavits that had ostensibly been given to councillors by the Mayor to sign on or around 7 August 2018 on very short notice in order to seek an undertaking that they would not disclose confidential information of the Council.
10)On 18 September 2018 another attempt was made by Council to confirm the minutes of the Meeting. The applicant again raised her concern about the erroneous reliance on s 5.23(2)(e)(iii) of the LG Act to exclude members of the public from the discussions regarding agenda item C13.1. The motion to confirm the minutes lapsed and the draft minutes remained unconfirmed.
11)The minutes of the Meeting were finally confirmed at the Council meeting of 16 October 2018. The confirmed minutes referred to s 5.23(2)(e)(iii) of the LG Act as the basis upon which members of the public had been excluded regardless of the objections raised previously by the applicant and Cr Richardson against the reliance on this sub-section.
12)An administrative annotation was added to the minutes sometime in or after November 2018 to note that the public had been excluded from the discussion of agenda item C13.1. pursuant to s 5.23(2)(d), and not pursuant to s 5.23(2)(e)(iii) of the LG Act which was an incorrect reference and an administrative error. The date on which the annotation was added as well as the identity of the author of the notation are not known. The annotation states as follows:
The reference to s.5.23(2)(e)(iii) is incorrect and an administrative error. The legislative reference should have been recorded as s.5.23(2)(d). This error has no material effect on the closure of the meeting for discussion of this matter, as the matter remains confidential in accordance with s.5.23(2) of the Local Government Act 1995.
This annotation:
·had not been put to the Council;
·had not been discussed by the Council; and
·had not been endorsed or approved by the Council.
Legal advice (if any) giving rise to the annotation had not been provided to councillors.
13)At proper construction of the LG Act, the reliance by the Council on s 5.23(2)(e)(iii) of the LG Act to exclude members of the public from the discussion of agenda item C13.1 was incorrect and the reference ought to have been to s 5.23(2)(d) of the LG Act.
14)This hearing is de novo which means the Tribunal does not investigate: the process followed by the City in regard to the complaint; the role of Mr Peyton in his investigation; the allegation of block voting in the Council; the motives of the complainant; the manner in which the respondent conducted its process; or the report produced by Mr Peyton. This is, in essence, not a general inquiry into the manner in which the City conducts its business.
15)The Intervener accepts that the applicant had subjectively formed the view that there was so called 'block voting' taking place from time to time; that a culture of fear and intimidation existed in the Council; that Council became increasingly secretive about its work; and that the trend of openness had been reversed towards a trend of lack of transparency. The Intervener accepts that this perception of the applicant may not necessarily be objectively correct, but it is reasonable in light of her experiences and observations of the manner in which the Council had been conducting its business.
The Panel
The Panel found on 27 March 2019 that the applicant had committed a minor breach of reg 7(1)(b) of the LG Regulations. The Panel found that the applicant had acted improperly since a reasonable person would consider that the applicant did not meet the standard of conduct expected from a councillor. The Panel on 8 July 2019 imposed a sanction on the applicant to apologise in public to the Council and fellow councillors for the Letter she had written.
Witness statements
Two witnesses were called to give evidence, namely the applicant and Cr Richardson. Both filed witness statements. The witness statements included evidence of matters about the general conduct of business within the Council that were not relevant to the decision under review. The Tribunal raised concerns with the two witnesses and the Intervener also identified the parts of each witness statement that it deemed as relevant to the proceeding. The hearing proceeded on the basis that only the parts of each witness statement that had a bearing on the review would be given weight and that cross-examination would be limited to those paragraphs.
Contentions of the parties
The Intervener
The Intervener says that although the circumstances that preceded the publication of the Letter are unique, the words used by the applicant, in particular the repeated use of the phrase 'paranoia', constitutes an improper use of the applicant's office as a Council member to cause detriment to the City or other councillors; the allegations are improper or derogatory and may cause the Council and/or councillors unwarranted offence or embarrassment; and disrespect was shown for the decisionmaking processes of the Council which were based on a decision of the majority of the Council.
The Intervener says the use of the word 'paranoia' to describe the conduct of fellow councillors is highly improper since the word is imbedded with negative connotations ranging from irrational decisionmaking to delusions as a result of mental illness. The Intervener concedes that although the applicant had a reasonable basis to be concerned about the apparent lack of a proper legal basis upon which the public was excluded from attending the discussion in regard to agenda item C13.1, the language used in the Letter is nevertheless excessive, improper and not becoming of a councillor.
The Intervener proposed that the Tribunal ought to find that the Letter constituted an improper use of the office of the applicant as an elected councillor; that the Letter intended to cause detriment to the Council and fellow councillors; and that it is open to the Tribunal to not impose any sanction or to affirm the sanction of a public apology.
The applicant
The applicant agrees that the circumstances in which the Letter was written, were unique. The applicant says she is a councillor with longstanding and is held in high regard. She has consistently focused on transparency and accountability of the governance of the City. She has always held the opinion that planning matters affect the community and that the community is, as a general principle, entitled to attend meetings of the Council to listen to deliberations. She accepts that meetings may be closed to the public but this should only be done for good reasons.
In this case there was no compelling reason for the discussion of agenda item C13.1 to be closed to the public. The meeting at which the original decision about the planning matter had been made was open to the public; the matter had been in the Tribunal for mediation; the matter was referred back to the Council with draft conditions to consider; there was no pertinent legal advice enclosed with the draft resolution; and importantly, for the purposes of this proceeding, the subsection of the LG Act relied upon to close the Meeting to the public was incorrect. The decision to exclude the public was therefore not only without merit, it was without a proper legal base.
The failure of the CEO; the Mayor and/or fellow councillors to consider the caution by the applicant in good faith was indicative of the culture within the Council whereby decisions were sometimes made by way of block voting without the proper consideration of the merit of an agenda item under discussion. The culture of fear that had been cultivated in the Council is illustrated by the affidavits that had to be signed by councillors without them been given adequate time to seek legal advice or to discuss the matter at a Council meeting.
The investigation by Mr Peyton also reflected the culture of fear since rather than investigating the merit of the concerns raised by the applicant about the legality of a decision to exclude the public from agenda item C13.1, a very expensive investigation took place.
The applicant accepts that she had a duty towards the City and fellow councillors, but she reiterates that she also had a duty towards the public in general and her electorate in particular. For the sake of proper governance and transparency she had to bring the seriousness of the situation to the attention of the public. The applicant emphasises that she did not name any councillor; that the councillors who voted for the resolution could not be identified at the time of publication of the Letter since the minutes of the Meeting had not been confirmed; and that her primary concern was with the processes adopted by the council to exclude the public from a meeting without a proper legal base for the decision.
Consideration
Overview
The standards applicable to the conduct of local government councillors have been the subject of several decisions of the Tribunal. Whereas general principles have crystallised, it is also recognised that each case has an element of uniqueness due to the particular facts and circumstance thereof. The facts of each complaint must therefore be considered within the context and through guidance of the general principles.
In this proceeding the Intervener eloquently drew the attention of the Tribunal to the general principles that may be applicable to this review, but at the same time, the Intervener acknowledged that the circumstances of this complaint are so unique that the Tribunal may come to a conclusion that would, in the normal course of events, not be the likely outcome.
The finding made in this matter is ultimately determined by the use of the word 'paranoia' in the Letter in light of the apparent refusal of the City to give consideration; to acknowledge or concede that the resolution by which the public had been excluded from the Meeting was based on an incorrect sub-section of the LG Act.
It is accepted by the Intervener that the applicant had on several occasions raised her concerns about the inappropriateness of s 5.23(2)(e)(iii) of the LG Act as a basis for exclusion of the public from the Meeting, namely:
•twice in emails prior to the Meeting;
•during the Meeting;
•at the meeting of 4 September 2018 when the minutes were to be confirmed; and
•at the meeting of 18 September 2018 when another failed attempt was made to confirm the minutes.
The Council nevertheless ultimately confirmed the accuracy of the minutes on 16 October 2018 and by doing so endorsed subsection 5.23(2)(e)(iii) of the LG Act as the legal basis for the exclusion of the public. It is only later that by the hand of an unidentified staff member, an undated annotation was made to the minutes to acknowledge that the reliance on s 5.23(2)(e)(iii) of the LG Act was incorrect. This annotation was not tabled to Council; it was not endorsed by Council; and was not otherwise accompanied by legal advice to Council.
It appears that since the applicant first raised her concerns in writing on 27 August 2018 about the legality to exclude the public, that neither the CEO, the Mayor nor the Council had given due and proper consideration to her concerns. To the applicant, this seemed as if the entire process went into lockdown with a refusal by the CEO, the Mayor and elected councillors to do what ought to have been obvious to read the LG Act. It appears that the CEO, Mayor and majority of the Council were so fixated on excluding the public from the Meeting, that they closed their minds to the reasonable concerns raised by the applicant. It is in this context that the word 'paranoia' was used in the Letter.
What should have been a simple reference to the relevant subsection of the LG Act became a protracted conflict, an internal investigation, a complaint and ultimately a hearing in the Tribunal.
The Tribunal agrees with the Intervener that these circumstances are unique.
General principles
It is accepted that in the discharge of their duties, councillors must interact with each other in a courteous and respectful manner whilst also representing the interests of the community. Regulation 7 of the LG Regulations is not intended to 'prohibit a council member from discussing council business, to question and, in some cases no doubt, to criticise the actions of others which impact on matters relevant to the affairs of a local government and the community it serves'; Treby at [56]; King and Local Government Standards Panel [2018] WASAT 42 (King) at [48]. In the making of comments the debate must however be of such nature that it does not distract from the dignity of the office or adversely reflect on the competence of fellow councillors; King at [50].
In Treby (at [29]-[33]) examples of the various elements of potential 'improper use of the office' were usefully set out in summary as follows:
•The standard of conduct that would be expected of a person in the position of the councillor by reasonable persons with knowledge of the duties, powers and authority of the councillor and circumstances of the case;
•Impropriety does not depend on a councillor's knowledge or intention since it is an objective test;
•Impropriety may arise in different ways and depends on the circumstances of the case;
•If the alleged impropriety arises from an abuse of power, the knowledge of a councillor and the purpose or intention 'will be important factors in determining whether the power has been abused; and
•Impropriety may be found even if a councillor thought the words were to the benefit of the council or if the intention was to benefit the council.
The question arose in the hearing whether the constitutional right to implied freedom of political communication can be relied upon as an absolute justification of the Letter. There is no need to provide an in depth discussion of the matter of Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. In Treby the relevancy of the principles of freedom of political communities was discussed in detail within the context of the legislation pursuant to which this proceeding is determined; Treby at [43]-[54].
Relevantly for purposes of this proceeding is that the right to freedom of political communication is not absolute; it does not confer personal rights; and reasonable restrictions may be imposed on whatever freedom of political communication exists at the level of local government. The Tribunal follows Treby at [53] when it is concluded that:
… For present purposes, it suffices to say that even if the implied freedom of political communication applies to communications of the present kind, reg 7(1)(b) does not need to be construed in a manner different from the ordinary and natural construction outlined above, in order to operate consistently with the implied freedom.
When considering whether detriment had been intended or suffered, it is noted that detriment is not to be limited to actual loss or injury suffered. Detriment includes non-financial loss, humiliation, embarrassment, and harassment; Yates and Local Government Standards Panel [2012] WASAT 59 at [71] and Ryan and Local Government Standards Panel [2009] WASAT 154 at [32]. In order for a finding to be made the conduct must either have been intended for a person to suffer detriment or for the person making the statement to be recklessly indifferent that detriment was probable or likely as a consequence of the conduct.
Duty to the Council and electorate
The parties accept that a councillor has a two-pronged duty a duty towards fellow councillors and a duty towards the public. Although courtesy and respect are essential in the interaction with fellow councillors, it is also accepted that public office and public interest require robust debate, public ventilation of differences and scrutiny of policies. Respecting decisions of a Council does not equate with necessarily agreeing with the merit of those decisions. Even after a vote on a matter had been taken, a councillor could explain to his or her electorate why he or she disagreed and continues to disagree with that decision; that is a part of the usual democratic processes.
In this case the applicant had discharged her duties towards the Council and towards the public. The question is whether in her choice of words she exceeded what is reasonable when she displayed her frustration to the public in the Letter by using the word 'paranoia'.
The applicant had discharged her duty towards the Council by repeatedly drawing the attention of the CEO; the Mayor; and fellow councillors to the incorrect reliance on subsection 5.23(2)(e)(iii) of the LG Act as the basis upon which the public was to be excluded from the discussion of agenda item C1.13. She sent two emails to the CEO prior to the Meeting, and received no response to those emails; she raised her concern during the Meeting in response to which council nevertheless voted to rely on sub-section 5.23(2)(e)(iii) of the LG Act to exclude the public; she opposed the confirmation of the minutes on 4 September 2018 and again on 18 September 2018, in response to which the Council regardless confirmed the minutes on 16 October 2018.
Cr Richardson said that he recalled the meeting of the Council of on 4 September 2018 when the applicant again sought to draw the attention of the Council to the incorrect legal basis for the decision to exclude the public from the Meeting, and how the Council failed to address on merit, the concerns of the applicant.
The Tribunal is satisfied that the applicant had properly discharged her duties by repeatedly and respectfully making her concerns known to the CEO, the Mayor and fellow councillors about the incorrect legal basis upon which to exclude the public from the Meeting.
The question must be asked why the CEO, the Mayor and the majority of Council reacted in the way they did in response to what appears to be an imminently reasonable question posed by the applicant? This is a question that deserves an answer albeit not the subject of this proceeding.
In her interaction with the public by way of the Letter, the applicant did not focus on the merit of the decision that had been made in regard to the planning issue. The applicant raised her concern about the exclusion of the public from the Meeting. She did not explain in detail the background to her concern. The Letter was after all not intended to be an in depth legal analysis, but was tailored to suit a letter column in a community newspaper. The Letter was, when viewed on the page of the Post newspaper, a relatively non-descript, short letter that could easily be missed on a page dominated by other letters and advertisements.
The Tribunal is satisfied that the duty of the applicant towards her office, towards fellow councillors and towards the public, justified bringing to the attention of the public, her concern that the public may have been excluded from the Meeting without a proper legal basis. This is a reasonable concern arising from the importance of accountability and responsibility. She did indeed 'act in good faith (i.e. honestly, for the proper purpose, and without exceeding [her] powers) in the interests of the City of Subiaco and the community' and she acted 'in accordance with her obligation of fidelity to the City of Subiaco' as is required by part 4.1(a) of the Code.
The question whether her choice of words was proper is considered below.
Respect for a majority decision versus legality of a decision
This case does not hinge on the question whether the applicant showed disrespect towards the merit of the decision taken by the majority of Council at the Meeting. While the applicant disagreed with the merit of the decision to exclude the public, that was not her main rationale for the Letter and the subsequent application for review. She took issue with the legality of the decision. The essence of her concern is that a majority cannot trump legality when the legal basis upon which the public is excluded is improper.
No majority can remedy the lack of a proper legal basis for a resolution to exclude the public from its deliberations.
This places the dispute in a different category from other decisions such as Treby where councillors took issue with the merit of Council decisions.
In this matter the applicant indicated prior to the Meeting that the exclusion of the public could not be pursued under sub-section 5.23(2)(e)(iii) of the LG Act. Cr Richardson raised the same concern at the pre-Council preparatory meeting. The applicant again raised her concern during and again after the Meeting. She left the Meeting not because of her disagreement with the merit of the decision. She left because of her dissatisfaction that a resolution to exclude the public had been voted on, and which, in her view, had no legal basis. The irony is that if those to whom the applicant had directed her concerns (particularly the CEO and the Mayor) had considered her comments on merit, the legal basis for excluding the public from the Meeting could have been rectified by reference to the appropriate sub-section of the LG Act and the majority could have made a decision.
The facts show, however, that rather than to reflect on the merit of the concerns raised by the applicant, the Council persisted with their reliance on sub-section 5.23(2)(e)(iii) of the LG Act and eventually endorsed the minutes of the meeting on 16 October 2018 regardless of the publication of the Letter and the repeated objections of the applicant to the confirmation of the minutes.
The further irony is that Council staff subsequently sought to make an undated notation to clarify the minutes of the Meeting, but without this notation or the legal advice that had given rise to it being put to a meeting of the Council.
For all practical purposes neither the CEO, the Mayor nor the Council has conceded up to the day of the hearing that the legal basis whereupon they sought to exclude members of the public at the Meeting was improper.
The Tribunal is satisfied that the applicant did not in the Letter undermine the majority decision-making of the Council, but that she expressed concern at the legality of the resolution and that her action was reasonable, proportionate and consistent with what could be expected of a prudent councillor after she had exhausted all other avenues.
Balance between public interest and exclusion of the public
The point of departure of the LG Act is that meetings of a local government council are generally open to the public (s 5.23(1) of the LG Act). The council or a committee 'may' close a meeting to the public if any of the circumstances as set out in 5.23(2) of the LG Act is established. The decision to exclude the public from a meeting may be controversial, but ultimately it is a matter from the council or committee to decide. A councillor may oppose such a resolution, but the decision of the majority must be respected and any ongoing criticism must be courteous and in acknowledgment that the majority had made a decision.
The Tribunal accepts that the applicant has been committed to the public holding of meetings and transparency and accessibility. As a public representative that is a laudable and valid objective. The Tribunal also accepts, however, that regardless of the preference of the applicant, the council or a committee may pursuant to s 5.23(2) of the LG Act decide to close a meeting to the public.
There is however no obligation on the council to close a meeting to the public if any of the considerations listed in s 5.23(2) of the LG Act arises; hence the use of the word 'may' to indicate the discretion to exclude members of the public from a meeting or part of the meeting. A council must exercise a discretion whether to close a meeting and in doing so must apply its mind to all relevant information, including the principal objective namely, accessibility to the public.
The closing of a meeting to the public must, generally speaking, be preceded by at least three practical steps, namely:
a)identification of the relevant sub-section of s 5.23(2) of the LG Act for the meeting to be closed;
b)consideration by councillors of the rationale for the proposed exclusion of the public; and
c)a vote to close the meeting.
In this case the proposal to close the Meeting did not rely on the correct sub-section of the LG Act. The Intervener also accepts that this was the incorrect sub-section, whereas the Council persisted that it was the correct sub-section and therefore confirmed the minutes of the meeting on 16 October 2018.
The Council's reliance on the incorrect sub-section means the merit of the closure was for all practical purposes not relevant since the legal basis to exclude the public was absent.
A member of the staff of the Council later attempted to rectify or clarify the minutes by way of an undated notation, but even then he or she got it wrong since they recorded in the notation that the reference to the incorrect subsection had 'no material effect' since the matter 'remains confidential in accordance with s 23(2) of the Local Government Act, 1995'.
It seems as if the person who made the notation thought, erroneously, that as long as a subject matter fell loosely within the scope of s 5.23(2) of the LG Act, there was no need for the Council to identify the specific power on which it can decide to close a meeting to the public. Such a generous approach would undermine the principle that all council meetings should be open to the public. If a decision is made to close a meeting, the relevant sub-section from which the power is derived must be accurately identified.
The Letter authored by the applicant can be distinguished from the letter the subject of the matter of King. In King, the applicant had used words and phrases to describe other persons in the council in a letter to a newspaper that were offensive and unbecoming of a councillor. He used words and phrases such as 'inept', 'lack of respect', 'feeble attempt' and 'mockery of standard orders' to voice criticism of conduct during a meeting. These comments are of a personal nature which fall outside the ambit of what had taken place in the matter before this Tribunal.
The Tribunal accepts that a council may decide to close a meeting to the public, but in this case the incorrect sub-section was relied upon and such reliance gave rise to the Letter. The applicant acted in the interests of the Council and the public by drawing to the attention of the public that the public had been excluded from attending the discussion of agenda item C13.1 without a proper legal basis. The Council and the public had their interests served by the criticism raised by the applicant.
May or must close the meeting
In the notice of the Meeting and the minutes of the Meeting it is recorded that agenda item C13.1 'is required' to be dealt with behind closed doors since the subject matter to be discussed fell within the scope of s 5.23(2) of the LG Act.
This raises the question whether the closure of a meeting is 'required', if a subject matter falls within the scope of one of the subcategories in s 5.23(2) of the LG Act as stated in the notice and minutes of the Meeting.
The answer is in the negative.
The mere fact that a subject matter potentially falls within one of the categories of s 5.23(2) of the LG Act, does not automatically mean the public must be excluded from the discussion. The proposition in the notice of meeting that the public 'is required' to be excluded was erroneous. The LG Act does not mandate exclusion of the public, but bestows a discretion. The council has a discretion once a subject matter falls within the scope of one of the sub-categories of s 5.23(2) to decide whether or not to exclude the public, but the exclusion is not automatically 'required'.
The applicant was therefore entirely reasonable in her quest for more information as to why the public should be excluded from agenda item C13.1 and to require the exclusion to be pursuant to the appropriate legal power. The applicant did not deny majority decisionmaking; she did not show disrespect to the decision-making of the Council; and she did not exceed her responsibilities as a councillor. She acted properly, prudently and responsibly as a councillor ought to do by seeking clarification of the legal basis of a decision and when that was not provided after several attempts, to draw it to the attention of the public who had been directly affected by the decision to exclude them.
Events prior to and following the Meeting
The parties agree that the hearing is de novo which means the Tribunal does not investigate the process followed by the City in regard to the complaint, the role of Mr Peyton in his investigation, the allegation of block voting in the council, the motives of Cr Mansfield who lodged the complaint, the manner in which the respondent conducted its process, or the internal report produced by Mr. Peyton. This is, in essence, not a general enquiry into the manner in which the City manages its business.
The Intervener accepts that the applicant had formed the view based on her observations and experiences that there was so called 'block voting' taking place on certain occasions; that a culture of fear and intimidation existed in the Council; that the Council had become increasingly secretive about its work; and that the trend of openness had been reversed towards a trend of lack of transparency. The Intervener accepts that this perception of the applicant may not necessarily be objectively correct or verifiable, but it is reasonable in light of her experiences and observations of the manner in which the City conducted its business. The Tribunal agrees with the Intervener.
The Tribunal also notes that prior to and following the Meeting there was an apparent refusal or closing of the mind on the part of the CEO; the Mayor and some councillors to consider the merit of the concern expressed by the applicant. What should have been a simple process whereby the correct sub-section of an Act is identified according to which the public is excluded from a meeting, gave rise to an elaborate complaint, an internal investigation, a notation to the minutes of the Meeting, substantial costs and potential damage to the reputation of the Council, the CEO and the Mayor.
The notation made at some time in or after November 2018 seems to acknowledge the merit of the concern that had been raised since 27 August 2018 by the applicant, but even the notation was not put to Council for its notice, discussion or approval.
The Tribunal is satisfied that, as was stated by the Intervener, the perception of the applicant that her concern was not being dealt with on the merit and that the council and CEO had displayed a closed mind to the issue, was reasonable and rational in light of the observations the applicant had made about the operation of the Council. The Tribunal also finds that the CEO; the Mayor and the majority of the Council closed their minds to the fair and rational concern raised by the applicant; that they proceeded to exclude the public on the basis of an incorrect subsection of the LG Act; and that the applicant acted resonably to bring the concern to public scrutiny.
Criticism of process or persons
The applicant contends that she took issue with the process that lead to the exclusion of the public from the Meeting and that she did not criticise or name individual councillors.
The Intervener agrees that no councillors were named in the Letter and that the voting preference of individual councillors was not mentioned in the Letter.
The Tribunal also notes that since the minutes of the Meeting had not been confirmed until 16 October 2018, a reader of the Letter would not have been able to ascertain who the six councillors were who voted in favour of the exclusion of the public.
The Tribunal accepts that on proper reading of the Letter the applicant took issue not with the character or opinion of individual councillors, but expressed concern at what she perceived was the moving away from transparency in general, and the exclusion of the public from the Meeting concerning agenda item C13.1 in particular. Her concern was grounded in the apparent refusal of the CEO, the Mayor and the majority who supported the exclusion of the public and to clarify the legal basis upon which the public had been excluded from the meeting.
The Tribunal finds that the process that gave rise to the exclusion of the public from the discussion of agenda item C13.1, the refusal of the CEO, Mayor and fellow councillors to address the merit of concerns expressed by the applicant and the adding of a notation to the Minutes in an effort to rectify the shortcoming identified by the applicant, are indicative of a process that was seriously flawed. The reputation of some persons may have suffered in the process, particularly so the reputation of the Mayor and the CEO, but this is not due to ill will on the part of the applicant; it was simply because those persons seemingly refused to address a reasonable concern about the legality of the exclusion of the public.
Embarrassment caused to Council
The Intervener says the Letter caused embarrassment to the Council; it was disrespectful, improper and derogatory. The applicant says she had exhausted all options for her concerns to be considered in good faith; the Council is in the final analysis accountable to the public; and the Council brought any negative public exposure to itself.
The Tribunal concurs with the applicant.
The circumstances of this matter are indeed unique. The Letter is not about a disgruntled councillor who disagrees with a majority decision and then vents her disagreement in public towards the Council or individual councillors. This is about the CEO, the Mayor and the Council who:
•did not respond to the two emails of enquiry by the applicant prior to the Meeting;
•did not at the Meeting consider the merit of the concern expressed by the applicant that the Meeting was relying on an improper legal basis for excluding the public;
•after two meetings had failed to confirm the minutes, and ultimately some two months later on 16 October 2018 confirmed the minutes of the Meeting; and
•added a notation to the minutes in November 2018 without disclosing to the Council the legal basis or advice upon which the notation is founded.
The CEO, the Mayor and the councillors who voted for the exclusion of the public on a proper consideration of the events caused itself embarrassment through its disregard of the concerns raised by the applicant. If any harm was done to the reputation of the Council or individuals, it was self-inflicted.
Other avenue available to applicant
The Tribunal enquired of the applicant why she decided to write the Letter. Her response was simple: she had no other avenue left to bring light to her concern. In her view, the Council is ultimately responsible and accountable to the public and the public had the right to know that they had been excluded from a meeting without a proper legal base for that decision. The Intervener could not identify to the Tribunal any other option that the applicant could have been pursued.
The Tribunal accepts the explanation of the applicant. Her reasoning and decision were reasonable, logic and consistent and informed by her duties as a councillor. The applicant attempted on several occasions to bring to the attention of the CEO, the Mayor and the Council her concerns. These concerns were not considered on merit but essentially ignored. By ignoring the query of the applicant, the CEO, the Mayor and majority of Council contributed to the perception in the mind of the applicant that they were primarily focused on excluding the public from a meeting, rather than ensuring that a proper legal base was secured for that decision.
The Tribunal reaches this conclusion based on the following:
•Cr Richardson raised his concern at the Forum that was held on 24 August 2018, but it was ignored.
•The applicant wrote to the CEO, the Mayor and all councillors on 27 August 2018 to raise concerns about the legal basis to exclude members of the public. She received no reply from the CEO or from the Mayor.
•The applicant wrote again to the CEO, the Mayor and all councillors on 28 August 2018, prior to the Meeting, to say she had not received a reply to her concerns and asked for it to be dealt with. She received no reply from the CEO or from the Mayor.
•The applicant raised her concerns during the Meeting. No legal advice was sought and the matter was put to a majority vote.
•The applicant raised her concerns at the meeting of 4 September 2018 when a proposal was put to confirm the correctness of the minutes. The confirmation of the minutes was not brought to a vote.
The applicant, having exhausted what she saw as the available options to remedy the situation, wrote the Letter on 4 September 2018, shortly after the Meeting.
The Tribunal is satisfied that the applicant had exhausted the options that were available to her; that she owed a duty to the public to make them aware that the decision to exclude them may not have been proper in accordance with the appropriate sub-section of the LG Act; and that the option to publish a very succinct letter in the Post newspaper was reasonable. The applicant acted in the best interests of the Council and in accordance with her obligation of fidelity to the Council.
The use of the word 'paranoia'
The Intervener accepts that the applicant may have had a genuine reason for her concerns that had given rise to the Letter, but the Intervener contends that the use of the word 'paranoia' was improper. The Intervener says the word 'paranoia' inevitably accrues a meaning which is derogatory or demeaning, and even in an extreme sense, suggests a person's mental illness. The Intervener accepts that the word was not used within the context of suggesting in a diagnostic context that any of the councillors were suffering from a mental illness.
The applicant says that the word 'paranoia' in general use does not necessarily refer to a mental illness or delusionary thinking. In common use of the word 'paranoia' the circumstances in which the word is used are wide and impossible to define with absolute certainty. The applicant attributes two essential meanings to the word in the context of this hearing: firstly that a decision had been made without proper consideration of the legal basis as if a majority vote could cure the problem of legality; and secondly that in the Council, a management style and culture of secrecy and being 'toxic' had developed with the aim to exclude the public from discussions that directly impacted on their rights and interests. The negative environment that concerned the applicant was evidenced by the affidavits that councillors had to sign without proper legal advice or explanation of the reason for it; the numbering of copies of papers to track down any persons who make leak material; the failure of CEO or the Mayor to respond to reasonable concerns about issues of to the exclusion of the public; a notation being added to minutes without the reason for the notation being explained or it being tabled in Council; and an internal investigation being undertaken by Mr Peyton without persons under investigation being made aware thereof. In the eyes of the applicant the culture within the Council could therefore be characterised as one of 'paranoia' and the applicant says that a reasonable and objective person who had knowledge of the workings of a council and a councillor would come to the same conclusion.
The Tribunal agrees with the applicant that the use of the word 'paranoia' in common vernacular is much wider than that of delusional thinking associated with mental illness. References to common understandings of 'paranoia' are for example:
•Extreme, irrational distrust of others ( or excessive suspicion of the motives of others ( the absence of an explanation as to why, paranoia takes over. ( suspicious, having illusions about being followed or persecuted, or about being afraid or distrustful of others ( characterized by extreme suspiciousness and anxiety ( distrust or suspicion of others ( intense anxiety or worry ( extremely nervous and worried because you believe other person/s do not like you or may be trying to harm you (
•Synonyms: suspicious, worried, nervous, apprehensive (>
In this proceeding 'paranoia' within the context used by the applicant refers to the refusal of the CEO, the Mayor and the majority of councillors to consider a legal question on merit; a closing of the mind to logical argument and reasonable request; and a mistaken belief that majority voting can cure a question of legality.
In conclusion, the Tribunal finds that applicant had reasonable grounds to form the opinion that the CEO, the Mayor and some councillors had unreasonably displayed a refusal to consider the legality of a proposal to close the Meeting to the public. The use of the word 'paranoid' within this context was not improper or unbecoming of a reasonable person who had knowledge of the train of events. The Tribunal is therefore satisfied that a person who is objective and independent who has knowledge of the functions of a councillor and who was exposed to these events would not find the use of the word 'paranoia' as offensive, degrading or improper.
Answer to questions
1)Does the incorrect reference by the City to the appropriate subsection of the LG Act to justify the exclusion of the public from the Meeting, bear relevance to this review, and if so, what is the possible impact thereof on the outcome?
Yes, the reliance on an incorrect sub-section of the LG Act to justify the exclusion of the public from the deliberations of agenda item C13.1 at the Meeting is relevant and it casts this proceeding in a unique light that separates it from previous decisions of the Tribunal in regard to public criticism of decisions by local government councillors.
2)Did the Letter constitute an improper use of the office of the applicant as an elected councillor?
No, the Letter did not constitute an improper use of the office by the applicant as an elected councillor. The Letter was, in light of the surrounding circumstances, reasonable and in the interests of the Council and the public. The applicant properly discharged her functions as an elected councillor after she had exhausted all reasonable remedies. The standard of conduct by the applicant was not inconsistent with what would be expected of a person in the position of the councillor by reasonable persons with knowledge of the duties, powers and authority of the councillor and circumstances of the case. Measured objectively the conduct of the applicant was not improper. The circumstances of this matter is such that the use of the word 'paranoia' can be distinguished from other matters previously dealt with by the Tribunal where disgruntled councillors had used the media to discredit majority voting on the merit of a matter. The applicant did not intend or attempt to abuse power, in fact, she acted with restraint only after all avenues had been exhausted. The applicant, in effect, was exposed to a potential abuse of power since the CEO and the Mayor did not respond to her reasonable and rational concerns, and the Council subsequently voted to exclude the public without ascertaining if the legal basis for such exclusion had been properly established. The applicant acted consistently with her duties to the Council and to the public.
In light of the findings in response to questions 1 and 2, there is no need to respond to questions 3, 4 and 5.
Finding
In light of the foregoing the application for review is successful; the finding made by the Panel on 27 March 2019 should be set aside and the sanction imposed on 8 July 2019 should be revoked.
Orders
1.The application for review of the decision by the Local Government Standards Panel dated 27 March 2019 and 8 July 2019 is successful.
2.The finding made by the Local Government Standards Panel on 27 March 2019 is set aside the sanction imposed on 8 July 2019 is revoked.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR B DEVILLIERS, MEMBER
4 MARCH 2020
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