MILNER and LOCAL GOVERNMENT STANDARDS PANEL - [2021] WASAT 103

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION:   MILNER and LOCAL GOVERNMENT STANDARDS PANEL [2021] WASAT 103
MEMBER:   MS R PETRUCCI, MEMBER
HEARD:   27 MAY 2021
DELIVERED          :   6 AUGUST 2021
FILE NO/S:   CC 1802 of 2020
BETWEEN:   GREG SHANE MILNER
Applicant
AND
LOCAL GOVERNMENT STANDARDS PANEL
Respondent
ATTORNEY-GENERAL OF WESTERN AUSTRALIA
Intervener

Catchwords:

Local Government Act 1995 (WA) - Review of decision of Local Government Standards Panel - Alleged minor breach of reg 7(1)(b) Local Government (Rules of Conduct) Regulations 2007 (WA) - Whether posting newspaper article on Facebook amounts to improper use of office - Whether intent to cause detriment - Appropriate sanction for minor breach - Public apology

Legislation:

Local Government (Rules of Conduct) Regulations 2007 (WA), reg 3, reg 7, reg 7(1)(b)
Local Government Act 1995 (WA), s 2.10(a), s 5.105(1), s 5.106, s 5.107, s 5.110(6), s 5.110(6)(b), s 5.125
State Administrative Tribunal Act 2004 (WA), s 25(2), s 29(3)(c)(ii), s 31(1), s 37(1)

Result:

Application for review successful in part
Minor breach confirmed
Sanction varied

Category: B

Representation:

Counsel:

Applicant	:	Mr P Donovan & Ms H Burnside
Respondent	:	Ms C Gilchrist
Intervener	:	Ms C Gilchrist

Solicitors:

Applicant	:	MDS Legal
Respondent	:	State Solicitor's Office
Intervener	:	State Solicitor’s Office

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

Bradley and Local Government Standards Panel [2012] WASAT 44
King and Local Government Standards Panel [2018] WASAT 42
Liberal Party of Australia (Western Australian Division) INC v City of Armadale [2013] WASC 27
Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83
Re and Local Government Standards Panel [2011] WASAT 108
Southwell and Local Government Standards Panel [2019] WASAT 128
Treby and Local Government Standards Panel [2010] WASAT 81

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 21 October 2017, Mr Greg Shane Milner (applicant or Mayor Milner) was elected a councillor of the City of South Perth (City) for a four year term. During that term, following an election that ran from about August to October 2019, the applicant was elected Mayor of the City on 19 October 2019. During the election campaign, the applicant posted on Facebook a newspaper article written by Mr Paul Murray regarding, amongst other things, the management of the City's finances (Article). The Article was published in The West Australian on 28 September 2019.
Ms Susanne Doherty (Ms Doherty[1]) brought three separate complaints against Mayor Milner. The complaint dated 21 January 2020 and considered in SP 006 of 2020 and the complaint dated 1 March 2020 and considered in SP 027 of 2020 were dismissed by the Local Government Standards Panel (Panel or respondent). The third complaint dated 26 March 2020 and considered in SP 032 of 2020 alleged that Mayor Milner committed five minor breaches of reg 7 of the Local Government (Rules of Conduct) Regulations 2007 (WA) (Regulations). All but one of the minor breaches were dismissed by the…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2021] WASAT 103
Decision Date: 6 AUGUST 2021

CaseChat Overview and Summary

The matter between Milner and the Local Government Standards Panel was heard in the Civil Division of the Supreme Court of Western Australia. The appellant, Milner, challenged the Panel's decision finding him guilty of a minor breach of the Local Government (Rules of Conduct) Regulations 2007 (WA). Specifically, Milner was found to have improperly used his office by posting a newspaper article on Facebook, in violation of regulation 7(1)(b). The Panel imposed a sanction of a public apology.

The key issues before the court were whether Milner's actions constituted an improper use of office and if there was an intent to cause detriment. Additionally, the court had to determine if the sanction imposed by the Panel was appropriate for the minor breach. Milner argued that his actions were not improper and that the sanction was disproportionate.

The court held that Milner's posting of the newspaper article on Facebook constituted an improper use of office, as it involved the use of his position for personal benefit. The court also found that Milner's intent was not to cause detriment but rather to engage in political discourse. However, the court upheld the Panel's finding that the actions constituted a minor breach. The court found that the sanction of a public apology was appropriate given the nature of the breach and the absence of any significant detriment caused by Milner's actions.

Orders