MCMANUS and LOCAL GOVERNMENT STANDARDS PANEL - [2019] WASAT 50

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION:   MCMANUS and LOCAL GOVERNMENT STANDARDS PANEL [2019] WASAT 50
MEMBER:   JUDGE T SHARP, DEPUTY PRESIDENT
MR M SPILLANE, SENIOR MEMBER

HEARD:   13 AND 14 MARCH 2019
DELIVERED          :   3 JULY 2019
FILE NO/S:   CC 1188 of 2018
BETWEEN:   LEO JOHN MCMANUS
Applicant
AND
LOCAL GOVERNMENT STANDARDS PANEL
Respondent
ATTORNEY GENERAL OF WESTERN AUSTRALIA
Intervener

Catchwords:

Local government - Regulation of councillors - Local Government Standards Panel - Rules of conduct - Minor breach - Conduct at a council meeting

Legislation:

Local Government (Rules of Conduct) Regulations 2007 (WA), reg 4(2), reg 7(1)
Local Government Act 1995 (WA), s 5.104(1), s 5.105(1), s 5.106, s 5.110
State Administrative Tribunal Act 2004 (WA), s 27(2), s 27(3), s 29, s 31(1)

Result:

Application for review allowed

Category: B

Representation:

Counsel:

Applicant	:	Mr GJ Douglas
Respondent	:	No appearance
Intervener	:	Ms J Vincent

Solicitors:

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

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

Bradley v Local Government Standards Panel (2012) 80 SR (WA) 69
Treby v Local Government Standards Panel (2010) 73 SR (WA) 66

REASONS FOR DECISION OF THE TRIBUNAL:

Background

Application

This matter comes before the Tribunal by way of an application by Leo John McManus (applicant or Cr McManus) under s 5.125 of the Local Government Act 1995 (WA) (LG Act). The applicant is a councillor at the City of Nedlands (City or Council). The application is for a review of a decision of the Local Government Standards Panel (Standards Panel) published on 7 March 2018, where the Standards Panel held that Cr McManus had committed minor breaches under the LG Act. The decision as to sanction was then published on 18 May 2018. The decision concerns a complaint made against the applicant by Cilla de Lacy (Ms de Lacy or Cr de Lacy), who later became a councillor at the City.

The complaint

Ms de Lacy, who was at the time standing for election to Council, authorised an advertisement which was published in the 23 September 2017 edition of the Post Newspaper (Post), a local newspaper in the area. The advertisement contained five dot points as follows:
•Cilla de Lacy: Chair, Hollywood Underground Power Action Group
•Twenty years' public policy experience in infrastructure, land planning and sustainability
•Secured underground power for West Hollywood at a good price
•Lobbying State Government and Western Power to finish the job
•Committed to getting it done!
The conduct the subject of the complaint in question occurred during an ordinary Council meeting of the City on the evening of 26 September 2017. At that meeting, a motion was moved under 'Urgent Business' which stated:
Council instructs his Worship the Mayor or the [Chief Executive Officer] to write to the Post Newspaper correcting the misleading assertion in the advertisement on page 16 in last week's Post that a candidate for election Ms Cilla de Lacy was responsible for the initiation of the underground power project for Hollywood.
During the debate on the motion, the content of the advertisement was discussed and in the course of those discussions, Cr McManus was alleged to have made certain comments in respect of Ms de Lacy.
Following Council debate, the motion was carried eight votes to one.
In the 30 September 2017 edition of the Post, an article was published in which comments made by various councillors during the debate were reported.
Cr de Lacy was not a councillor at the date of the meeting but went on to be elected as a councillor in the subsequent election. On 8 November 2017, Cr de Lacy (as she by then was) filed a Complaint of Minor Breach Form with the City's Chief Executive Officer (CEO) in respect of the comments attributed to Cr McManus at the meeting of 26 September 2017. The CEO forwarded Cr de Lacy's complaint to the Standards Panel in a letter dated 13 November 2017.
The complaint and the words complained about by Cr de Lacy were set out in the Form as follows:
At the [City's meeting on 26 September 2017] [the applicant] claimed [Ms de Lacy] told a lie in an election advertisement … . He said 'You don't expect someone to state a mistruth. You can't make excuses for someone who tells pork pies'.

Decision under review

Following its consideration of the complaint, the Standards Panel on 7 March 2018 published its findings and reasons. Ms de Lacy's complaint was summarised by the Standards Panel at para 15 which relevantly states:
In her Complaint Form Cr de Lacy says:
•'I do not believe I told a 'pork pie' as [the applicant] claimed because I do have the capacity, ability and authority to secure underground power at the best price given my professional qualifications and experience … as well as the work I led as Chair of the … Group[.]'
•'I never said in the [advertisement in the Post] that I had been responsible for the initiation (Standards Panel's emphasis) of the underground power in Hollywood, as stated in (Council's) resolution.'
•By publicly commenting on her behaviour during an election period [the applicant] sought to gain an advantage for fellow Councillors who were standing for election in the same ward and caused her detriment.
In its findings, under the heading 'Whether this expression is objectionable or offensive', the Standards Panel stated:
63.Cr de Lacy had worked hard for the community, voluntarily and with integrity. Any reasonable person in Cr de Lacy's position would consider the 'someone who tell porkpies' expression to be objectionable as well as offensive.
64.Cr de Lacy was a member of the public when Cr McManus made the 'someone who tells porkpies' expression, which means that at the time of the alleged breach she fell within the scope of 'any other person' in regulation 4(2).
65.Cr McManus breached regulation 4(2) by using the expression 'someone who tells porkpies'[.]
The references to reg 4(2) may be a reference to reg 4(2) of the Local Government (Rules of Conduct) Regulations 2007 (WA) (LG Regulations). Alternatively, they may be a reference to Order 8.4(2) of the City's Standing Orders Local Law 2009 (City's Standing Orders).

Proceedings in the Tribunal

The application by Cr McManus was filed with the Tribunal on 8 June 2018. Following various procedural steps, the matter was heard by the Tribunal on 13 and 14 March 2019.
It should be noted that the matter was heard concurrently with matter CC 1187 of 2018, being an application by Cr Benedict Gervase Hodsdon in respect of findings and sanctions made against him by the Standards Panel arising out of comments he made at the same meeting. However, for reasons of clarity, Cr Hodsdon's matter is dealt with in a separate decision published by the Tribunal.
In the proceedings, the comments attributed to Cr Hodsdon were identified as Comments 1, 2 and 3 and the comments attributed to Cr McManus were identified as Comments 4, 5 and 6. In the circumstances Cr McManus's comments will therefore be identified in these reasons by the same numbers 4, 5 and 6.
As is appropriate in reviews of this type, the Standards Panel did not play an active role in the review proceedings due to the possibility that exists in review proceedings where the Tribunal may invite the decisionmaker to reconsider its decision (s 31(1) of the StateAdministrative Tribunal Act 2004 (WA) (SAT Act)) and to the fact that the powers of the Tribunal on review include the power to set aside a decision that has been reviewed and to send the matter back to the decisionmaker for reconsideration (s 29(3)(c)(ii) of the SAT Act).
In view of the Standards Panel's limited participation at the hearing, the Tribunal was assisted by the intervention of the Attorney General of Western Australia (intervener) who acted as a contradictor in the review proceedings.

Agreed facts

Cr McManus was elected a council member of the City in 2011 and was a councillor at the time of the alleged breaches.
No recording was made or minutes kept of the council debate of 26 September 2017. However, Mr Brett Christian, the managing editor of the Post, was in attendance and took contemporaneous notes. In the 30 September 2017 edition of the Post an article was published under Mr Christian's name with the headline 'Cold Shoulder For De Lacy'. Comments attributed to various councillors were set out in that article.
Following the passing of the resolution outlined earlier, the CEO, in compliance with the resolution, wrote to the managing editor of the Post on 29 September 2017 stating:
On behalf of the City of Nedlands, I wish to clarify the assertion made by Cilla de Lacy in her advert that she 'secured underground power for West Hollywood at a good price'.
While Ms de Lacy did lobby hard in support of underground power, the potential for an underground power project was actually initiated as a priority in the City of Nedlands' Community Strategic Plan adopted in 2013.
City staff, together with elected members, formulated a strategy that initially targeted the State Underground Power Program (SUPP) as the preferred method of delivering underground power to the rest of the City.
When the City was not successful with SUPP, staff then negotiated with Western Power to explore opportunities that would deliver projects using a fully-funded client model, in parallel with Western Power high voltage projects associated with 11KVa upgrades in the western suburbs.
This option eventually became the Nedlands (West Hollywood) Underground Power Project. It is worth noting the priority project under SUPP would have been Mt Claremont, not West Hollywood.
The final price for the project was a process of continuous negotiation between Western Power and the City. The council chose to continue, even when initial community consultation was far from supportive, due in part to the Hollywood Underground Power Action Group's campaign to say no.
We respect Ms de Lacy's commitment to underground power and the role she has played in this process but, in the interests of true and accurate facts, the Council believes it is important the correct information be presented to the community.

Comments complained about

The specific comments complained of and referred to earlier were agreed by the parties in the form set out in the intervener's statement of issues facts and contentions, but the parties accept that the comments the subject of this proceeding are as set out at para 7 of the intervener's submissions which state:
The [article in the Post] records that Cr McManus made the following comments during the Meeting:
(a)The statement [in the advertisement] was 'a mistruth' (Comment 4);
(b)referring to Cr de Lacy, '[you] can't make excuses for someone who tells porkpies' (Comment 5); and
(c)referring to Cr de Lacy, '[t]hen a Johnnycomelately comes along and takes credit, and it's just plain wrong' (Comment 6).
In closing submissions, counsel for the intervener conceded that Comment 6 should not be pressed for the reason that there was no grievance expressed by Cr de Lacy in respect of that matter.
In the circumstances, both the Tribunal and counsel for Cr McManus accepted that Comment 6 was no longer part of the review and would not be considered further in these reasons.

Issues to be determined

The parties agreed that there were five issues to be determined by the Tribunal:
1)whether Cr McManus was a member of Council of the City at the relevant time;
2)whether Cr McManus made the comments complained of at the ordinary meeting of Council on 26 September 2017;
3)whether in making Comments 4 and 5, Cr McManus contravened Order 8.4(2) of the City's Standing Orders and therefore committed a minor breach pursuant to reg 4(2) of the LG Regulations;
4)whether Cr McManus, in making Comments 4 and 5 made improper use of his office as a council member for the purposes of reg 7(1) of the LG Regulations, and in making the comments intended to:
a)directly or indirectly gain an advantage for himself or any other person; or
b)caused detriment to Ms de Lacy; and
5)if the Tribunal finds that Cr McManus has committed one or more minor breaches in respect of issues 3 and 4 above, how should those breaches be dealt with under s 5.110(6) of LG Act?
It was accepted from the outset by all parties that Cr McManus was a member of Council of the City at the relevant time and so issue 1 is answered in the affirmative.
In respect of issue 2, during the course of giving evidence before the Tribunal, Cr McManus accepted that he had made Comments 4 and 5 as outlined and therefore issue 2 is also answered in the affirmative, leaving only issues 3, 4 and 5 remaining to be determined.

The relevant statutory provisions

Section 5.104(1) of the LG Act enables regulations to be made prescribing rules of conduct for council members:
5.104.Other regulations about conduct of council members
(1)Regulations may prescribe rules, to be known as the rules of conduct for council members, that council members are required to observe.
Section 5.105(1) of the LG Act provides:
5.105.Breaches by council members
(1)A council member commits a minor breach if he or she contravenes
(a)a rule of conduct under section 5.104(1); or
(b)a local law under this Act, contravention of which the regulations specify to be a minor breach.
Regulation 4 of the LG Regulations under the heading 'Contravention of certain local laws' states:
(1)In this regulation
local law as to conduct means a local law relating to conduct of people at council or committee meetings.
(2)The contravention of a local law as to conduct is a minor breach for the purposes of section 5.105(1)(b) of the Act.
The City has adopted the City's Standing Orders as a local law effective from 2 September 2016. Order 8.4(2) 'Adverse reflection at a meeting' states:
(2)It is an offence for a member of the Council or a committee to use offensive or objectionable expressions in reference to any member, employee of the Council, or any other person[.]
Regulation 7(1) of the LG Regulations provides:
Securing personal advantage or disadvantaging others
(1)A person who is a council member must not make improper use of the person's office as a council member
(a)to gain directly or indirectly an advantage for the person or any other person; or
(b)to cause detriment to the local government or any other person.
Section 5.106 of the LG Act outlines the standard of proof in relation to findings of a breach and states:
Deciding whether breach occurred
A finding that a breach has occurred is to be based on evidence from which it may be concluded that it is more likely that the breach occurred than that it did not occur.
Section 5.110 of the LG Act provides that the Standards Panel may deal with a minor breach in the following manner:
5.110.Dealing with complaint of minor breach
(1)The member of the primary standards panel who receives a complaint from a complaints officer under section 5.107(3)(c), 5.108(2)(c) or 5.109(1)(c) is to
(a)allocate that complaint to a standards panel; and
(b)send the complaint and anything received from the complaints officer to the member of that standards panel who is appointed under Schedule 5.1 clause 2(a).
(2)After receiving a complaint allocated to it under subsection (1), a standards panel is required to
(a)make a finding as to whether the breach alleged in the complaint occurred; or
(b)send the complaint to the Departmental CEO under section 5.111.
…
(6)The breach is to be dealt with by
(a)dismissing the complaint; or
(b)ordering that
(i)the person against whom the complaint was made be publicly censured as specified in the order; or
(ii)the person against whom the complaint was made apologise publicly as specified in the order; or
(iii)the person against whom the complaint was made undertake training as specified in the order;
or
(c)ordering 2 or more of the sanctions described in paragraph (b)[.]
Section 5.125 of the LG Act allows a review by the Tribunal of decisions by the Standards Panel to dismiss a complaint or to make an order.
The Tribunal's powers on review are contained at s 27 and s 29 of the SAT Act. Section 27 of the SAT Act states:
Nature of review proceedings
(1)The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decision maker but may involve the consideration of new material whether or not it existed at the time the decision was made.
(2)The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.
(3)The reasons for decision provided by the decision maker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision.
Section 29(1) to s 29(3) of the SAT Act states:
Tribunal's powers in review jurisdiction
(1)The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decision maker in making the reviewable decision.
(2)Subsection (1) does not limit the powers given by this Act or the enabling Act to the Tribunal.
(3)The Tribunal may
(a)affirm the decision that is being reviewed; or
(b)vary the decision that is being reviewed; or
(c)set aside the decision that is being reviewed and
(i)substitute its own decision; or
(ii)send the matter back to the decision maker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate,
and, in any case, may make any order the Tribunal considers appropriate.

Issue 3 Whether Cr McManus in making Comments 4 and 5 contravened Order 8.4(2) of the City's Standing Orders

As set out earlier in these reasons, Order 8.4(2) of the City's Standing Orders states:
It is an offence for a member of the Council or a committee to use offensive or objectionable expressions in reference to any member, employee of the Council, or any other person[.]
In view of issues 1 and 2 having already been answered in the affirmative, the matter to be decided in respect of issue 3 therefore is whether either or both of the comments complained of is 'offensive' or 'objectionable'.
Comment 4 is that the statement in the advertisement that Ms de Lacy had 'secured underground power for West Hollywood at a good price' was 'a mistruth'. Comment 5 is '[you] can't make excuses for someone who tells porkpies'.

Intervener's submissions

In written submissions dated 13 March 2019, the intervener stated at para 20:
One or more of the comments made by Cr McManus were offensive or objectionable because:
(a)Comment 4 
(i)The Oxford English Dictionary defines 'mistruth' to mean:
'1. Scottish. Disbelief, unbelief; unfaithfulness … 2. A false or incorrect proposition or statement; (in later used frequently euphemistic) a lie. Also: falsehood.'
(ii)Comment 4 carried the harmful and injurious implication that the Statement was a lie or at least not truthful, thereby implying that Cr de Lacy had misled the public, lacks integrity and can't be trusted.
(b)Comment 5
(i)The Oxford English Dictionary defines 'porky pie' to have a special use:
British a lie.
(ii)Comment 5 carried the harmful and injurious implication that the Statement was a lie or at least not truthful, thereby implying that Cr de Lacy had misled the public, lacks integrity and can't be trusted.

In their oral closing submissions, counsel for the intervener again dealt with each of the comments submitting:
Comment 4. Now, the 'someone' in that sentence is Councillor De Lacy, so we already satisfied the last aspect of the test. It's a reference to 'any other person'. She is the one who was alleged to have stated a mistruth. If we break down the sentence now, in context, 'a mistruth' is in fact the line in the advertisement. That's point 1. It's false – a mistruth means it's false and, at worst, a lie. And I say at worst, it's a false statement with intent to deceive. It's of a definitive nature. There's no caveat, there's no 'may have', 'could have', 'on one view maybe'. It's 'a mistruth':
You don't expect someone to state a mistruth.
Now, that comment is offensive. It's harmful. No one, again, wants to be accused of publishing something that is not true. It's objectionable because it prompts an adverse reaction. …
The final comment, comment 5, Councillor McManus said in reference to Councillor De Lacy:
You can't make excuses for someone who tells pork pies.
…
Now, 'pork pie' is defined as a lie in the Oxford English Dictionary. Again, there's no caveat on that comment. It's not as if Councillor McManus said 'pork pies, it could be said', or, 'it's possible', or, 'it may well be a pork'. Councillor McManus has agreed that he has said:
You can't make excuses for someone who in fact tells pork pies.
Now, again, it's offensive because it's harmful, it's attacking Councillor De Lacy's integrity, it's suggesting that she's deceitful, possibly. Well, that's the worst-case scenario.
You don't have to go there to still find it's offensive. It's objectionable because it excites dislike. No one wants to be called a liar or a soft version of a liar. It goes beyond unpleasant, and it prompts an adverse reaction, and it can be objected to. If the tribunal doesn't have any further questions in regards to the intervenor's submissions that standing order 8.4 has been breached on all four counts, I rest my submission accordingly[.]
(ts 96 97, 14 March 2019)

Applicant's submissions

Turning first to the applicant's written submissions dated 14 March 2019 as to whether the comments were 'offensive' or 'objectionable', in respect of Comment 4, counsel for the applicant submitted at para 44:
Regarding Comment 4, if the evidence of Mr Glover is accepted, the Advertised Statement is 'a false or incorrect proposition or statement' and so Comment 4 is simply true and cannot be characterised as objectionable or offensive.
Mr Glover is the Director of Technical Services for the City and his evidence is set out later in these reasons.
In respect of Comment 5, counsel for the applicant submitted at para 28:
… As the newspaper article states, Mr Hassell uses the word 'lie' in his speech, and Mr McManus gave evidence that as the mover of the resolution, it is his obligation to sum up and respond to the speeches made by others. Mr McManus, in response to Mr Hassell, says, 'You can't make excuses for someone who tells pork pies'.
Mr Hassell is another councillor of the City. There is no dispute between the parties that Mr Hassell at the meeting used the word 'lie' when referring to the advertisement.
In oral submissions, in respect of Comment 4, counsel for the applicant repeated his written submissions that the advertisement was incorrect and that Cr McManus, describing it as a 'mistruth', was simply correct.
In respect of Comment 5, counsel stated:
… Mr McManus was at pains to put the 'porky pie' comment in context, which has become really the big issue for Mr McManus in this hearing.
What I submit that Mr McManus's concerns about this should be given some weight. As the newspaper article states, it was Mr Hassell that used the word 'lie' in his speech, and at that time, Mr McManus, according to his evidence-in-chief, had not and no one has said otherwise had not many any sort of reference to lie, porky pie, anything about – of that nature in this opening.
It was only once Mr Hassell, who is, incidentally, a lawyer and a professional politician, used the word 'lie' in his speech, and Mr McManus gave evidence, as the mover of the resolution, he believed that it was his obligation to sum up and respond to the speeches made by others[.]
(ts 125, 14 March 2019)

Consideration of Issue 3

In respect of Comment 4, although it was contained in Ms de Lacy's complaint, there was no finding by the Standards Panel in respect of it. The only finding made by the Standards Panel was in respect of Comment 5, namely, 'someone who tells pork pies'.
However, the Tribunal acknowledges that both the applicant and the intervener ran their case on the basis that both Comments 4 and 5 were complained of, which in fact they were. In the circumstances, the Tribunal will therefore deal with the matter as it was complained of, particularly keeping in mind the provisions of s 27(2) and s 27(3) of the SAT Act outlined earlier which states:
(2)The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.
(3)The reasons for decision provided by the decisionmaker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision.
Cr McManus was questioned in crossexamination in respect of Comment 4 that Ms de Lacy's advertisement that she 'secured [underground power] for West Hollywood at the best price' was 'a mistruth', and the following exchange took place:
COUNSEL:When you said “mistruth” you meant it wasn't accurate?
CR MCMANUS: Correct.
…
COUNSEL:… you formed the view that the advertisement wasn't accurate wasn't truthful?
CR MCMANUS: I knew that the statement in that advertisement was not true, yes.
(ts 36 37, 13 March 2019)
At para 14 16 of his statement of evidence, Cr McManus set out his position stating:
14.Given the involvement I had had over many years and the many briefing sessions and council meetings I had attended regarding underground power for the West Hollywood ward, I was surprised to read the third of five bullet points on Ms de Lacy's advertisement which asserted that she had 'Secured underground power for West Hollywood at a good price'.
15.Based on my knowledge of the process undertaken to secure the underground power network, and my understanding of the role the Director of Technical Services plays in securing the agreement with Western Power, I formed the opinion that the above statement in Ms de Lacy's advertisement was false.
16.I decided that the appropriate thing to do was ask that the Mayor or the CEO cause a correction to be published, to prevent anybody being misled.
17.I notified the CEO that I would be proposing to move for a resolution of the Council about this matter at the next meeting on 26 September 2017.
The Tribunal also had before it a statement of evidence from Mr Martyn Glover, the Director of Technical Services for the City, who stated at paras 30 to 32:
The only reason that the West Hollywood underground power proceeded and was possible, is because Western Power had slated that area for upgrade of the high voltage distribution network and were prepared to negotiate with the City.
All of the negotiation between the City and Western Power, since November 2016 was done by the City's administration in particular, me as Director of Technical Services.
All of the decisions relative to the project on behalf of the community were made by Council.
It is clear from Cr McManus's evidence that he had read the advertisement in the Post, formed a view that the claim that Ms de Lacy 'had secured [underground] power for West Hollywood at a good price' was incorrect and so sought to bring a motion on at the next Council meeting in order to have a resolution passed requesting the publisher of the Post to correct the matter.
Cr McManus then moved the motion on 26 September 2017, following which the CEO of the City sent the letter to the Post. It was in proposing the motion that Comment 4, stating that Ms de Lacy's claim was a 'mistruth', was made.
As stated by Pritchard DCJ, as she then was, in Treby v Local Government Standards Panel (2010) 73 SR (WA) 66, the context surrounding a councillor's conduct is important.
Her Honour, in dealing in that case with what was 'improper' under reg 7(1) of the LG Regulations, stated at [27]:
… It is clear that the meaning of 'improper' cannot be considered in isolation, but rather will take its flavour from the surrounding context, which includes an assessment of what is involved in the role of a councillor[.]
Cr McManus asserts that Ms de Lacy's advertisement stating that she had 'secured' underground power for West Hollywood at a good price was a false or incorrect proposition or statement.
Based on the evidence of both Cr McManus and Mr Glover, together with the content of the letter of the CEO to the Post, it may be open to the Tribunal to find that, although Ms de Lacy may have been involved in lobbying and assisting to secure underground power for West Hollywood through her Chairmanship of the Local Action Group, it had actually been secured by the City and Western Power and not Ms de Lacy.
However, the issue is not whether the statement in the advertisement was in fact a 'mistruth' or whether Ms de Lacy is 'someone who tells pork pies'. The issue is whether those comments were offensive or objectionable in reference to Ms de Lacy.
As was stated in Bradley v Local Government Standards Panel (2012) 80 SR (WA) 69 at [45] and which is equally relevant here:
Local councillors do a critical, necessary and difficult job; they attempt to represent local opinion which is not always an easy task. They have little assistance in the way of staff and independent research facilities and they are not particularly well-remunerated (at least as ordinary suburban or rural councillors). They are political creatures in the best sense of that description who are primarily, in this capacity at least, accountable to their local electors and community. They do not always get things right, as some of the planning cases in this Tribunal testify. But they are not to be criticised for attempting to represent their constituency and community interests to the best of their abilities. Their job should not be made even more difficult by the imposition of unworkable rules that, in effect, limit what they may say when they are undertaking these critical functions.
The Tribunal acknowledges that the City's Standing Orders and rules of conduct are in place for good reason and must be respected but in the particular circumstances of the present case, the Tribunal is not satisfied, on the evidence before it, that when he used the word 'mistruth' in proposing his motion (Comment 4), Cr McManus breached the City's Standing Orders. We consider that in using the word 'mistruth', he was in fact trying to avoid using the words 'lie' or 'falsehood'.
With regard to Comment 5, Cr McManus was the mover of the particular motion before Council and as outlined earlier, both in his direct evidence and under crossexamination, Cr McManus was at pains to explain the context in which Comment 5 was made. At para 35(a) of his statement he said:
A mover of a motion at Council must sum up at the conclusion of the debate. The Councillor so doing responds to what other Councillors have said. I responded to Cr Hassell's reference to the Intervener's advertisement as being 'a lie' by saying something along the lines of 'it may well be a porky pie'. I did not initiate this. My words were, again, very measured, careful and to the point.
As we have said, context is very important. The Tribunal accepts the evidence of Cr McManus that he, being the mover of the motion and then having to sum up, attempted to soften the comments of another councillor who had made the statement that the claim in the advertisement was 'a lie' by using rhyming slang. Similarly, we accept that his word 'mistruth' in moving the motion which he put to Council was a euphemism to avoid using the word 'lie'.
The Tribunal finds that the use by Cr McManus of the word 'mistruth' and the statement that Ms de Lacy 'was someone who tells pork pies' were not offensive or objectionable in the particular circumstances that they were made. This is particularly so in the context that what was said by another councillor included the word 'lie', and was not complained about.
In the circumstances, the Tribunal finds that the Standards Panel finding that Cr McManus breached reg 4(2) of the LG Regulations by making Comment 4 and Comment 5 will be set aside.

Issue 4 Whether Cr McManus in making Comments 4 and 5 made improper use of his office as a council member for the purposes of reg 7(1) of the LG Regulations and, in making those comments intended:

(a) directly or indirectly to gain an advantage for himself or any other person; or

(b) to cause detriment to Cr de Lacy.

The wording of this issue is taken from reg 7(1) of the LG Regulations set out earlier. The first question to be answered is whether in making the comments complained of, Cr McManus made improper use of his office.
However, as is clear from a plain reading of reg 7(1) and in keeping with previous decisions of this Tribunal, a finding that Cr McManus in making the comments did make improper use of his office is not on its own a breach of the LG Regulations.
If the Tribunal makes such a finding it must then determine whether, in doing so, Cr McManus intended to either directly or indirectly gain an advantage for himself or any other person or he intended to cause detriment to Cr de Lacy before it can find that there was a breach of reg 7(1).
The Standards Panel's findings in this regard that Cr McManus had made improper use of his office was based in part on its findings that Comment 4 and Comment 5 were objectionable and offensive.
However, the Tribunal has found that those comments were not objectionable or offensive. The conduct of Cr McManus was not an improper use of his office as a council member and, in the circumstances, a breach of reg 7(1) of the LG Regulations cannot, in the Tribunal's view, be made out.
The Standards Panel's finding in that regard will also be set aside.

Conclusion

The application for review is allowed and the complaints against Cr McManus are dismissed.
On the basis that each of the Standards Panel's findings in the matter have been set aside, the sanction decision dated 18 May 2018 is also set aside.

Orders

1.The application for review is allowed.
2.The decision of the respondent made on 7 March 2018 that the applicant committed minor breaches under the Local Government Act 1995 (WA) is set aside and in substitution the decision is that the complaint is dismissed.
3.The decision of the respondent made on 18 May 2018 in relation to the sanction to be imposed on the applicant is set aside.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JUDGE T SHARP, DEPUTY PRESIDENT
3 JULY 2019