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 Panel. It is the remaining alleged minor breach that is the subject of Mayor Milner's application to the Tribunal. The alleged remaining minor breach concerns the applicant's post of the Article on Facebook.
[1] Ms Doherty is the immediate past Mayor of the City. Ms Doherty did not contest the mayoral election on 19 October 2019.
Ms Doherty alleged the applicant had breached reg 7 of the Regulations when he republished (or posted), on his Facebook page and three other South Perth community Facebook pages, the Article, which according to Ms Doherty conveyed the 'misleading and inaccurate impression' that the City 'was going broke and that its finances had not been well or properly managed'. Further, Ms Doherty alleged in her complaint:[2]
•The applicant 'knew the impression given by Mr Murray [in the Article] was entirely false'.
•The Article contained 'misinformation about the City's finances'.
•The applicant had disseminated and published 'false representations of the City's finances, financial management and the competence of the City, its staff and elected members'.
•It is clear that the applicant posted the Article on his Facebook page (and other South Perth community Facebook pages) 'knowing it was false'.
[2] Exhibit 1, Complaint of minor breach dated 3 March 2020, Hearing Book (HB) at page 307.
On 16 September 2020, the Panel found that the applicant breached reg 7(1)(b) of the Regulations by making an improper use of his office as a council member of the City to cause detriment to the City, the council of the City and Ms Doherty, by posting the Article on Facebook. In particular, the Panel found the applicant:[3]
[3] Exhibit 1, Panel's findings and reasons for findings published 16 September 2020, HB at pages 2543.
a)acted improperly because he:
i)published the Article without any 'accompanying commentary, discussion or explanation';
ii)had an obligation to ensure that any statement of fact that he mentioned or relied on was substantially true and that his 'comments or remarks' were not made with an improper motive;
iii)would have been aware at the time that the state of the City's financial health was a 'complex' issue that involved taking a number of factors into consideration; and
iv)had been a part of the council for some time and a key participant in the decisionmaking process. Although he was entitled to share information pertaining to the City's financial position with the community, on this occasion he failed to do so in a 'conscientious and thorough manner'; and
b)intended to cause detriment to the City, the council and Ms Doherty by discrediting the management of the City's finances.
Mayor Milner seeks a review by the Tribunal under s 5.125 of the Local Government Act 1995 (WA) (LG Act) of the finding of one minor breach and an order as to the sanction made by the Panel on 28 November 2020. In particular, Mayor Milner seeks to have the Panel's finding set aside, and in substitution an order that the complaint be dismissed. In the alternative, Mayor Milner seeks an order that the sanction made by the Panel be set aside, and in substitution an order made that no sanction be imposed.
As is appropriate in reviews of this type, the Panel did not play an active role in the hearing due to the possibility that exists where the Tribunal may invite the Panel to reconsider its decision (s 31(1) of the State Administrative Act 2004 (WA) (SAT Act)) and that the powers of the Tribunal on a review include the power to remit the matter back to the Panel for reconsideration (s 29(3)(c)(ii) of the SAT Act). The Panel's role was therefore confined to producing the s 24 bundle of documents and supplementary bundle of documents.
In view of the Panel's limited participation in the hearing, the Tribunal was assisted by the intervention of the Attorney-General of Western Australia (intervener) pursuant to s 37(1) of the SAT Act who acted where necessary as a contradictor to the case presented by counsel for Mayor Milner.
Section 5.106 of the LG Act outlines that the standard of proof required for finding that a breach has occurred is that it is to be based on evidence from which it may be concluded that it is more likely that not that the breach occurred. In Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83 at [124][125] the Court of Appeal held that, subject to the enabling legislation, no party bears an onus, legal or practical, in review proceedings in the Tribunal. I must therefore, having regard to the material before the Tribunal, decide whether it is more likely that the alleged breach of reg 7(1)(b) of the Regulations occurred than it did not occur.
For the reasons which follow, I conclude that the decision of the Panel of 16 September 2020 in relation to the finding of one minor breach should be affirmed but that the order as to sanction made by the Panel on 28 November 2020 should be varied to require Mayor Milner to make a public apology but without the requirement to undertake training. The order is provided as 'Annexure A' to these reasons.

Proceeding in the Tribunal

On 9 February 2021 the Tribunal ordered, pursuant to s 25(2) of the SAT Act that the decision of the Panel, the subject of the application for review, be stayed until further order. The further order is made and is provided as 'Annexure A' to these reasons.
Following various procedural steps, and in accordance with the Tribunal's usual practice, the hearing was conducted on the basis that all documents filed with the Tribunal would be regarded as being in evidence, subject to any proper objection. No objection was made. I therefore accepted into evidence Exhibit 1 (HB) which comprised the application dated 24 December 2020 and included the following documents:[4]
•Respondent's s 24 bundle of documents dated 9 March 2021;
•Intervener's Statement of Issues, Facts and Contentions dated 9 March 2021;
•Applicant's Amended Statement of Issues, Facts and Contentions dated 16 April 2021;
•Witness statement of Mayor Milner dated 11 May 2021; and
•The City of South Perth's Code of Conduct dated June 2019 (Code of Conduct).
[4] Although forming part of 'evidence', each of the parties' contentions and submissions are taken to be submissions, rather than evidence.
At the hearing on 27 May 2020, the Tribunal had the benefit of receiving oral evidence from Mayor Milner. Further, the Tribunal had the benefit of receiving submissions from counsel for Mayor Milner and counsel for the intervener.

The complaint

On 30 April 2020, the Panel received a complaint (SP 032 of 2020) of a minor breach forwarded by Mr Geoff Glass, the Complaints Officer for the City under s 5.107 of the LG Act in that the applicant breached reg 7 of the Regulations. Relevantly, it is alleged that the applicant breached reg 7(1)(b) of the Regulations which provides that a councillor must not make improper use of his office to cause detriment to the local government or any other person.
The complaint made by Ms Doherty, that is the subject of this proceeding before the Tribunal, may be summarised as follows (complaint):[5]
On 28 September 2019, the applicant posted (or republished) the Article, on his Facebook page and three other South Perth community Facebook pages (South Perth Chat, Kensington Connect and City of South Perth Community Noticeboard). The Article conveyed the 'misleading' and 'inaccurate' impression that the City was 'going broke' and that its finances had not been well or properly managed. The Article contained misinformation about the City's finances and brought the City and council into disrepute.

The material facts

[5] Exhibit 1, Panel's findings and reasons for findings, HB at pages 26 and pages 32-33.

The following facts are agreed by the parties. They are uncontroversial and I make the following findings of fact. For ease of reference, I have used the paragraph numbering as per the applicant's Amended Statement of Issues, Facts and Contentions.[6]
[6] Exhibit 1, Applicant's Amended Statement of Issues, Facts and Contentions, HB at pages 237246.
…
Financial Health Indicator and MyCouncil website
…
9.The [Financial Health Indicator] FHI is calculated from seven financial ratios that local governments are required to report annually, being:
(a)current ratio;
(b)asset consumption ratio;
(c)debt service coverage ratio;
(e)operating surplus ratio; and
(f)own source revenue ratio.
…
14.According to the MyCouncil website[7], the City's had the following FHI over the last several years:
[7] in the 2014/15 financial year;
(b)84 in the 2015/16 financial year;
(c)63 in the 2016/17 financial year;
(d)51 in the 2017/18 financial year; and
(e)68 in the 2018/19 financial year.
2019 Mayoral election campaign
…
15.[The applicant] was elected to the position of [c]ouncillor of the City on 21 October 2017 for a four-year term.[8]
[8] Exhibit 1, HB at page 238 and Intervener's Statement of Issues, Facts and Contentions, HB at page 491.
16.At the time [the applicant] was elected to the position of [c]ouncillor [of the City], Ms Doherty was the Mayor of the City.
17.Councillors of the [City] are subject to the City of South Perth Code of Conduct, the relevant version of which was adopted in June 2019 (Code of Conduct).
18.[The applicant] was elected to [M]ayor [of the City] on 19 October 2019; his four-year term is due to expire on 21 October 2023.
19.The election campaign for [M]ayor of the City took place between August and October 2019.
…
Advertisement and Media Release
…
25.[The applicant] was not responsible for the publishing of the Advertisement on 26 September 2019.
26.On 26 September 2019, Ms Doherty posted on her Facebook page (then titled, 'Mayor Sue Doherty City of South Perth'), in relation to the Advertisement as follows:
An Advertisement in this week's Southern Gazette is a scare campaign that will leave readers, residents & business owners with an inaccurate understanding of the City of South Perth's financial situation.
Our City of South Perth finances are sustainable and improving as planned.
…
A scare campaign by one local candidate that our City could be in financial trouble is simply FALSE! The Council has a plan and the trend line shows it is working…
27.Notwithstanding that Ms Doherty alleged that the Advertisement constituted a scare campaign 'by one local candidate', it is reiterated that [the applicant] was not responsible for the publication of the Advertisement.
…
Paul Murray Article 'Council finances head south'
…
32.On 28 September 2019, an [A]rticle by [Mr] Paul Murray entitled 'Council finances head south' was published in The West Australian newspaper [defined above at [1] as the 'Article']. [9]
[9] Exhibit 1, HB at pages 242 and 491.
33.The Article stated that, according to the MyCouncil website,[10] the City's [Financial Health Indicator] [(]FHI[)] score had fallen steadily from a score of 97 out of 100 in 2014/2015, through 84 and 63 to just 51 in the last available year, 2017/2018 [and had a FHI score which indicated below sound financial health].
[10] Article also included the following allegations:
(a)the City's council, under the leadership of Ms Doherty, had precluded councillors getting access to 'any financial information held by the City';
(b)the 'council effectively voted against itself getting more information on the city's finances'; and
(c)'neither the councillors nor the ratepayers, have the benefit of the detailed financial information that the council voted against being provided'.
…
37.… On 28 September 2019, [the applicant] posted the Article to his Facebook page [titled, 'Greg Milner for Mayor of South Perth'] and three other [c]ommunity Facebook pages, being [South Perth Chat, Kensington Connect and City of South Perth Community Noticeboard (Facebook Posts) comprising complaint 32 of 2020 (SP 2020-32)].[11]
…
40.At the time [the applicant] posted the Article to his Facebook page, [he] had 279 followers. At around the same time, [T]he West Australian newspaper had an average readership of approximately 440,000.
41.The applicant posted the Article in the lead up to the local government elections and did not remove the Facebook Posts until after he had been elected as Mayor of the City.[12]
Mr Glass' submission
42.On 4 October 2019, the City's Chief Executive Officer, Mr Geoff Glass (Mr Glass) published a statement in the City's website referring to the Article and stated that the City was not 'going broke' (Mr Glass['] submission).
43.Mr Glass' submission did not assert that the Article was false or deceptive.
[11] Exhibit 1, Intervener's Statement of Issues, Facts and Contention, HB at pages 243 and 491.
[12] Ibid, at pages 244 and pages 491-492.
The applicant submits that the following further facts are also relevant to this proceeding. Again, for ease of reference, I have used the paragraph numbering as per the applicant's Amended Statement of Issues, Facts and Contentions.[13]
[13] Exhibit 1, Applicant's Amended Statement of Issues, Facts and Contentions, HB at pages 237-246.
…
[FHI] and MyCouncil website
8.The FHI is a measurement of a local government's overall financial health. The FHI methodology was developed by the Western Australian Treasury Corporation (WATC) with input from financial professionals working in local governments across Western Australia.
…
10.The maximum FHI is 100 and an FHI of 70 and above indicates sound financial health. The FHI is best viewed as a trend over time.
11.In the case of the City, the values for each of the seven ratios making up the FHI come directly from the City's annual financial statements each year. These financial statements are prepared by the City, audited by the City's auditors, and approved by the City Council.
12.The FHI for Western Australian councils, including the City, is available on the MyCouncil website, mycouncil.wa.gov.au (MyCouncil website).
13.The MyCouncil website is an initiative of the Western Australian Government to strengthen local government accountability and performance. It is designed to be available to the public.
…
2019 Mayoral Election Campaign
20.Although Ms Doherty did not contest the election at which [the applicant] was elected as Mayor of the City, she actively supported [the applicant's] only opponent, Mr Travis Burrows and sought to disparage the applicant by posting on her Facebook on 27 September 2019 in which she states she fully supports Mr Burrows for Mayor.
Councillors precluded from obtaining financial information
21.In or around April 2019, the [c]ouncil voted against a motion by Councillor Ken Manolas for the full [c]ouncil to be permitted to access any financial information held by the City. The terms of Councillor Manolas['] motion were as follows:
Council Members (to) be granted access to any information held by the local government relevant to reviewing and/or investigating prior decisions made by, or actions taken by, the administration under delegated authority.
22.In or around August 2019, a further motion by Councillor Ken Manolas for the full [c]ouncil to be permitted to review a specific series of invoices was also defeated. The [c]ouncil vote on the motion was 4 - to – 4, with Ms Doherty using her casting vote to defeat the motion.
23.[I]n August 2019, [the applicant] brought a motion that 'the Chief Executive Officer, provide the revised 30 June 2019 monthly financial statements to Council for nothing at the September Ordinary Council Meeting'. This motion was also defeated, with a 4 - 4 [c]ouncil vote, and with Ms Doherty using her casting vote to defeat the motion.
Advertisement and media release
24.On 26 September 2019, an [A]dvertisement was placed in the Southern Gazette Newspaper by Mr Geoffrey Ogden and Mr Nick Tana (Advertisement). The Advertisement included the words, 'Is the City of South Perth Going Broke?' and shows a graph of the City's FHI scores for the 2013/14 to 2017/18 financial years.
…
28.On 26 September 2019, Ms Doherty released a media release entitled, 'The facts on the City's financial position' (Ms Doherty's Media Release), stating that the Advertisement misrepresented the City's true financial position.
29.Ms Doherty's Media Release sought to counter the criticisms of the City's finances by others by expressly relying upon the FHI results and not disputing their accuracy. [M]s Doherty's Media Release asserts that the 'current information' shows that the FHI for 2018/19 would be a score of 62' (being an increase from the 2017/18 FHI of 51).
30.[A] FHI score of 62 is still substantially below the result which the MyCouncil website states amounts to 'sound financial health' (i.e. a score of 70).
31.At the time of publication of Ms Doherty's Media Release, the information upon which the projected 2018/19 FHI score was based (the 2018/2019 annual financial statements) was not available to [the applicant]. Those financial statements had not then been completed.
…
Paul Murray Article – 'Council finances head south'
…
35.Neither the Panel … nor the intervener … challenged any of the matters [set out above at paragraph 9] either as to the facts underpinning those issues or [the applicant's] reliance on those issues.
36.[T]he Article based its conclusions as to the health of the City's finances upon the content of the MyCouncil website[.]
…
38.[The applicant's] Facebook page was created on or about 4 September 2017. It ha[d] a number of names, as follows:
(a)from 4 September 2017 to 21 October 2017 (during the period that [the applicant] was campaigning for election as a City [c]ouncillor) it was tilted, 'Greg Milner for City of South Perth';
(b)from on or about 22 October 2017 until in or around August 2019 it was tilted, 'Councillor Greg Milner – City of South Perth';
(c)during the election campaign for Mayor of the City (in or around August 2019 to October 2019) it was titled, 'Greg Milner for Mayor of South Perth'; and
(d)after the election campaign it was retitled, 'Mayor Greg Milner – City of South Perth'.
39.[A]t the time [the applicant] posted the Article to his Facebook page, his page described him as being a candidate for Mayor of the City.
…
Mr Glass' submission
…
44.Mr Glass' submission asserted that past FHI score calculations should be revised down and that account should be taken of a projected FHI score for 2018/19. By contrast, Ms Doherty's Media Release sought to expressly refer to the FHI without qualification in relation to the City's finances.
45.Mr Glass' submission contended that an 'adjusted' FHI for 2018/19, (which was not mentioned in Ms Doherty's Media Release) would be 77. However, the MyCouncil website (which has subsequently been updated) shows the FHI for 2018/19 was ultimately recorded as being 68 which is still below the 'sound financial health' mark.
46.By reason of the matters referred to in paragraphs 21 and 22, (which were not challenged by the Panel or the intervener), the information in Mr Glass' submission was not available to [the applicant] at the time the applicant posted the Article on his Facebook page or even at the time Mr Glass' submission was published.
47.Mr Glass' submission was posted on the South Perth Community Facebook pages on which [the applicant] had posted the Article, being 'the South Perth Chat', 'Kensington Connect' and 'City of South Perth Community Noticeboard'.
Other complaints by Ms Doherty
48.Since her retirement as Mayor, Ms Doherty brought three separate complaints against [the applicant], being:
(a)the complaint dated 21 January 2020 and considered in SP 2020-006 (First Complaint);
(b)the complaint dated 1 March 2020 and considered in SP 2020-027 (Second Complaint);
(c)the complaint dated 26 March 2020 and considered in SP 2020-032 (Third Complaint).
49.The Third Complaint comprised a series of allegations by Ms Doherty that, within the period from 26 September 2019 to 2 October 2019, as a member of the [c]ouncil of the City, [the applicant] committed five minor breaches of the [LG] Act contrary to the terms of s 5.105(1) of the [LG] Act. It was contended, in each of the five allegations, that [the applicant] had acted in contravention of regulation 7 of the R[egulation]s.
50.The complaints by Ms Doherty the subject of the First Complaint and the Second Complaint were dismissed by the Panel on 12 March 2020 and 16 June 2020 respectively. All the complaints the subject of the Third Complaint, save for one [a]dverse [f]inding [which is the current matter before the Tribunal], were dismissed on 29 July 2020.

The applicant's further facts were not admitted by the intervener.
I do not accept paras 11, 20, 28, 29, 30, 31, 35, 36, and 44 to 47 of the applicant's further facts to be findings of fact. In regards to the other further facts of the applicant (paras 8, 10, 12, 13, 21, 22, 23, 24, 38, 39 and 48 to 50), I find them to be facts, however nothing turns on them.
The only fact set out in the Intervener's Statement of Facts, Issues and Contentions that the applicant did not admit was that at para 10 as follows:
The Article also contained a photo of the Complainant with the headline, 'Is the City of South Perth Going Broke?' in reference to an advertisement that appeared in the local Southern Gazette newspaper. The Article generally referenced the Complainant in a negative light and called into question a statement made by the Complainant in her capacity as Mayor that the City was financially stable and on track to obtain a better FHI score of 62 next year.
Mayor Milner accepts that the Article contained a photograph of Ms Doherty and that the photograph accompanying the Article also contained an image of the Advertisement showing the words, 'Is the City of South Perth Going Broke?', but rejects that those words constitute a 'headline'. Further Mayor Milner rejects counsel for the intervener's contention that the Article 'generally referenced the complainant [Ms Doherty] in a negative light', noting that counsel for the intervener did not challenge the accuracy of any of the factual contentions in the Article. Finally, Mayor Milner accepts that the Article calls into question a statement made by Ms Doherty in her capacity as Mayor that the City was financially stable and on track to obtain a better FHI score of 62 next year where the Article pointed out that 'future performance is unknown'.
For reasons which are explained below, I find that the Article contained a photograph of Ms Doherty on the backdrop of a chart showing a decline in the City's finances with the caption 'See the dramatic decline of South Perth Council's finances … in just four years' with the following heading (in bold and in a large font), 'IS THE CITY OF SOUTH PERTH GOING BROKE?'. Further, in my view, the Article called into question a statement made by Ms Doherty in her capacity as Mayor of the City that 'the City was financially sustainable' and 'on track to score 62 next year' where the Article pointed out that 'future performance is unknown'.

The issues

The parties agree on five issues that require determination by the Tribunal. In addition, counsel for Mayor Milner identified broader issues for determination (issues 2, 5, 6 and 7 below). I will deal with each of the nine issues in the order raised by counsel for Mayor Milner as follows:
Issue 1:Was the applicant a councillor of the City at all relevant times?
Issue 2:Were any factual assertions contained in the Article false or misleading?
Issue 3:Did the applicant make use of his office when he posted the Article?
Issue 4:If issue 3 is answered 'yes', whether the applicant's conduct constituted an improper use of his office as a councillor?
Issue 5:Would a reasonable person consider that the applicant did not meet the standards of conduct of a councillor when he posted the Article to his Facebook page and three other South Perth community Facebook pages in the run up to the local government election and did not remove the Facebook Posts until after he had been elected as Mayor of the City?
Issue 6:Did the applicant act improperly in breach of reg 7(1)(b) of the Regulations because he posted the Article without any further commentary, explanation or context as to some of the contributing factors regarding the City's low FHI?
Issue 7:Is the construction of reg 7(1)(b) of the Regulations advanced by the intervener inconsistent with the ordinary and natural construction of the regulation and does it therefore operate inconsistently with the implied freedom of political communication?
Issue 8:Did the applicant intend to cause detriment to the City, the council and Ms Doherty when he posted the Article?
Issue 9:If the applicant's conduct does amount to a breach of reg 7(1)(b) of the Regulations, what is the appropriate sanction?
It was accepted from the outset by the parties that the applicant was a councillor of the City at all relevant times. Accordingly, I answer 'yes' to issue 1.
Apart from agreeing that the applicant made the Facebook Posts, the parties do not agree with regards to the other issues. In particular, counsel for Mayor Milner refutes that the applicant made use of his office when he made the Facebook Posts. Further, counsel for Mayor Milner's position is that the applicant's conduct was to highlight legitimate concerns about the financial health of the City in the context of the election for Mayor of the City and there is no evidence to support the conclusion that the applicant's intention was to cause detriment to the City, the council or to Ms Doherty.
This leaves issues 2, 3, 4, 6, 7, 8 and 9 for me to determine.
In his Statement of Issues Facts and Contentions, the intervener submits that issues 3, 4, 5, 6 and 8 should be answered in the affirmative and issue 7 in the negative.[14]
[14] Exhibit 1, Intervener's Statement of Issues, Facts and Contentions, HB at pages 490-491.
This case will turn on whether the applicant, by posting (or republishing) the Article on Facebook, was required to provide accompanying commentary, discussion or explanation and context.[15]
[15] ts 8, 27 May 2021.
Before considering each of the issues in turn, it is convenient to make reference to the relevant statutory provisions and principles that I will apply in determining this matter.

Applicable statutory provisions and principles

The relevant statutory provisions to be considered in this case are conveniently set out at [24][33] and [36][37] in Southwell and Local Government Standards Panel [2019] WASAT 128 (Southwell).
In addition to the statutory provisions, the City's Code of Conduct (adopted in June 2019) sets out key principles of conduct expected of councillors and employees of the City including the following:
•act with reasonable care and diligence;
•act with honesty and integrity;
•avoid damaging the reputation of the City; and
•treat others with respect and fairness.
Finally, the relevant principles to be applied in this case are set out in Southwell at [38][40].
I turn, next, to explain why I find Mayor Milner's conduct in respect of the complaint constitutes an improper use of his office as a councillor of the City.

Issue 2 Were any factual assertions contained in the Article false or misleading?

The allegations made by Ms Doherty in her complaint are summarised above at [3].
Mayor Milner asserts that the allegations made by Ms Doherty in her complaint are that he acted dishonestly.[16]
[16] Exhibit 1, Mayor Milner's submissions as to disposition of finding dated 30 September 2020, HB at page 440.
It is Mayor Milner's evidence that he knew the Article discussed a range of matters but was not of the view that the Article was 'entirely false' as asserted by Ms Doherty.[17]
[17] Exhibit 1, HB at page 36.
Mayor Milner's submission to the Panel was that no evidence was provided by Ms Doherty as part of her complaint that the Article was 'entirely false'. Further, it is Mayor Milner's position that Ms Doherty, as the complainant, has an obligation to show that the Article was 'entirely false' (as opposed to just presenting a contrary subjective analysis).
Counsel for Mayor Milner submits the factual assertions in the Article were largely based upon the City's FHI, which is publicly available on the MyCouncil website and is designed to constitute a reliable and objective measure of the financial health of local government bodies. Further, counsel for Mayor Milner submits that Mr Glass' submission took exception to the merits of analysis of the City's finances in the Article but did not express any characterisation of the Article as 'entirely false' or otherwise. In conclusion, counsel for Mayor Milner submits the Article's analysis is on matters that are open to subjective analysis upon which reasonable minds may differ and that the Article is opinion journalism that deals with a broad range of matters relevant to the City's affairs, including policy proposals which extend beyond just financial matters.
It is not strictly necessary to address whether any factual assertions contained in the Article are 'entirely false' or misleading. This is because the nature of the Tribunal's task is to determine whether a minor breach has occurred. As set out above at [8], s 5.106 of the LG Act outlines that the standard of proof required for finding that a breach has occurred is that it is to be based on evidence from which it may be concluded that it is more likely than not that the breach occurred. No party or individual bears any onus, legal or practical, in review proceedings in the Tribunal (refer above at [8]). Therefore, contrary to Mayor Milner's assertion, there is no obligation on Ms Doherty to show that the Article was 'entirely false'.
The Panel did not make a finding that Mayor Milner acted dishonestly or that any of the factual assertions contained in the Article were 'entirely false' or misleading.
Relying on King and Local Government Standards Panel [2018] WASAT 42 at [51], counsel for the intervener submits that the applicant in sharing the Article which contains factual assertions in relation to the FHI score located on the MyCouncil website, does not excuse the applicant from his obligations, which arise under the Code of Conduct, to avoid damage to the reputation of the City or the council or Ms Doherty.
In my view, the fact that the applicant considers that he was not of the view that the Article was 'entirely false', or that the Panel did not make any findings as to dishonesty or that the factual assertions contained in the Article were false or misleading, does not excuse the applicant from his obligations under the Regulations and the Code of Conduct which are explained below.

Issue 3 Did the applicant make use of his office when he posted the Article?

It is useful at this point to set out reg 7(1)(b) of the Regulations. It provides:
A person who is a council member must not make improper use of the person's office as a council member
…
(b)to cause detriment to the local government or any other person.
Mayor Milner's position is that his Facebook page entitled 'Greg Milner for Mayor for South Perth' made no reference to him being a councillor of the City. However, counsel for Mayor Milner (correctly) accepted that when one 'gets into the detail of [the applicant's] Facebook site that he is a councillor'.[18]
[18] ts 82, 27 May 2021.
It is counsel for Mayor Milner's submission that the posting of the Article to Facebook is not conduct associated with, and only available to a person who is using his or her position as a councillor. In posting the Article, counsel for Mayor Milner says he did not make use of any information or resources only available to him, or make commentary only available to him.
Counsel for the intervener submits that the applicant made the Facebook Posts using his Facebook page entitled 'Greg Milner for Mayor of South Perth' and was recognised as a councillor running for Mayor as the 'about' section of the applicant's Facebook page referred to him as having been elected as a councillor of the City. Further, counsel for the intervener submits that the applicant as a councillor, previously shared articles on his Facebook page. In addition, counsel for the intervener submits that the applicant has used his Facebook page as a means of communicating with the public and the City residents about matters relevant to the City or with respect to his election campaign for Mayor of the City.
In giving evidence, Mayor Milner confirmed that he believes that by making the Facebook Posts he was representing the interests of the City. This falls within s 2.10(a) of the LG Act which provides:
A councillor … represents the interests of electors, ratepayers and residents of the district[.]
Further, Mayor Milner stated that the post on his Facebook page on 27 September 2019 at 2.44 pm shows a few people contacting him about the City's FHI. Mayor Milner said he stated on his Facebook page what the FHI was and where he obtained the information from, that is the MyCouncil website and gave the link to the site.[19]
[19] ts 56, 27 May 2021.
I find the applicant made the Facebook Posts to his Facebook page entitled 'Greg Milner for Mayor for South Perth' and to Facebook pages relating to the City, being South Perth Chat, Kensington Connect and City of South Perth Community Noticeboard. Further, I find that the posts by the applicant were made on the same day the Article appeared in The West Australian newspaper.
Notwithstanding the Article was available to the general public and therefore anyone from the general public could have posted the Article on Facebook, in this case, I find that the applicant, used his office as a sitting councillor of the City (in the sense that he acted in his capacity as a councillor, rather than in some other capacity), to post the Article on Facebook. The considerations I have taken into account to reach this view are as follows.
First, the applicant's Facebook page shared the Article which related to the City's financial management and finances and also related to the applicant's election campaign.
Second, the Article referred to the applicant as a councillor and what he had done in his capacity as a councillor of the City in relation to some of the issues or matters raised in the Article.
Third, the applicant shared the Article on his Facebook page which was dedicated to his role as a councillor during the election campaign to the City's related target audience where the applicant stated that the Article raised issues that were relevant to the electors of the City.
In Re and Local Government Standards Panel [2011] WASAT 108, his Honour Judge Sharp held at [28] the fact that a councillor sends an email from his or her private email address does not necessarily mean that, in sending the email, he or she was not making use of his or her office as a council member. His Honour found at [29] that, notwithstanding that the councillor sending an email from his or her personal email address, in the circumstances of that case:
[I]t is at least unrealistic for the applicant to believe that the recipients of her email would see her in any role other than that of their local councillor.
Similarly, in this case, even if the applicant's Facebook page was his personal page, in my view, in the context of the election campaign for Mayor of the City, it would be unrealistic for the applicant to believe that the followers of his Facebook page would see his role other than that of their local councillor.
Counsel for Mayor Milner contends that any suggestion that the Facebook Posts by the applicant, at the relevant time, must have involved the use of his office would lead to an incongruous result whereby a candidate for political office in the City could share that information if they were not at the relevant time a sitting councillor but could not if they were a sitting councillor.
With respect, I do not accept counsel for Mayor Milner's contention. The reason for this is as follows. The applicant as a sitting councillor, is not precluded from posting the Article on Facebook or making the Facebook Posts. However, in order to meet the standards of conduct expected of a councillor of the City, as reflected in the Regulations and the Code of Conduct, what the applicant, as a sitting councillor of the City, is required to do to meet the standards of conduct will necessarily differ from a member of the general public who is not a sitting councillor. I will return to the standard of conduct expected of a councillor later in these reasons.

Issue 4 Mayor Milner's conduct constituted an improper use of his office

Counsel for Mayor Milner submits there is no case analogous to the current case where a sitting councillor has republished or posted a newspaper article on Facebook but without any accompanying commentary, discussion or explanation.
Mayor Milner's evidence is that the most reasonable approach in the context of an election campaign was for him as a candidate for Mayor of the City, to post the Article but without further comment. Mayor Milner gave evidence that he had all the information available to understand the FHI scores in the Article as taken from the audited 2017/18 financial statements and that he had the financial qualifications and experience to understand the financial information.
Mayor Milner stated that he could have provided further context or information when he made the Facebook Posts but was not able to say what exactly.[20]
[20] ts 60, 27 May 2021.
Relying on Treby and Local Government Standards Panel [2010] WASAT 81 (Treby) at [29]-[33], it is counsel for Mayor Milner's position that in making the Facebook Posts, the applicant did not abuse his position as a sitting councillor or even use his position as a councillor. Rather, counsel for Mayor Milner submits that the applicant merely shared the publicly available Article on his election campaign Facebook page. Further, counsel for Mayor Milner says that the sharing of the Article was not an act Mayor Milner knew, or ought to know, that he did not have authority to do. In any event, counsel for Mayor Milner says the sharing of the Article does not require the use of a particular authority.
Counsel for the intervener also relied on Treby to submit:[21]
[I]t is open to the [T]ribunal to find that Mr Milner made improper use of his office when making the Facebook [P]osts without providing further context to assist readers in assessing the [A]rticle when he posted and shared it. … [T]he context that should have been provided by Mr Milner includes, first, providing a link to the My Council website containing FHI information. … And second, stating that it had been decided by the [C]ouncil at the budget briefing session in the 2018 to 2019 financial year to take steps to improve the FHI in the short to medium term, so two to four years, information … that residents of the City would be interested in knowing. And third, stating that some decisions which readers of Mr Milner's posts may have welcomed, such as limiting the increase in rates may have a negative effect on the FHI[.]
[21] ts 6770, 27 May 2021.
By omitting such contextual information, counsel for the intervener submits that the Article was critical and very negative towards the City, the council and Ms Doherty. Further, counsel for the intervener submits that the applicant, in representing the interests of the residents of the City, in making the Facebook Posts should have informed the public of the City's plan to improve the FHI over the next two to four years.
I accept that the sharing of the Article on Facebook does not require the applicant to have any particular authority. However, when the applicant made the Facebook Posts, it was incumbent on him to meet the standards of conduct expected of a councillor of the City as reflected in the Regulations and the Code of Conduct.
In my view, the applicant contravened the standard of conduct that would be expected of a person in the applicant's position as a sitting councillor by a reasonable person with knowledge of the duties, powers and authority of a councillor and the circumstances of this case in regards to the Facebook Posts. It is not necessary for me to find that the applicant was aware of his impropriety when making the Facebook Posts (Treby at [33]). In this case, I find that the applicant's use of his office (or position) as a sitting councillor was improper even though it was done with the stated intention of raising issues of concern to the residents of the City.

Regulation 3 of the Regulations sets out general principles to guide the behaviour of councillors in their capacity as council members including, relevantly:
…
(a)act with reasonable care and diligence;
…
(d)avoid damage to the reputation of the local government; and
…
(g)treat others with respect and fairness[.]
Clause 1.1 of the Code of Conduct sets out the key principles of conduct which reflects reg 3 of the Regulations. Further, the Code of Conduct provides that councillors accept the responsibility of maintaining the City's values by communicating and promoting the City's vision, and that it is considered that the adoption of the Code of Conduct will serve to strengthen the community's confidence in the integrity of those who are responsible for local government in the City.
In making the Facebook Posts, I find that the applicant failed to meet the standard of conduct expected of a sitting councillor of the City, as reflected in reg 3 of the Regulations and in clause 1.1 of the Code of Conduct. Councillors of the City are subject to the Code of Conduct, the relevant version of which was adopted in June 2019. In my view, the applicant fell short of the standard of conduct expected of a councillor for the following reasons.
First, as an elected councillor, the community will assume the applicant has a high level of knowledge about the City including its finances and financial health and would trust what the applicant posts, including the Article to Facebook, to be fact.
I accept the applicant's claim that he was concerned about the City's finances. I also recognise the applicant's desire to keep residents informed about local issues regarding the City. However, in making the Facebook Posts, it is incumbent on the applicant to give the Article context. To remain silent without any commentary, discussion or explanation or to simply rely on posts made by other persons on the applicant's Facebook page to give what his counsel described as the 'other side of the argument in the election campaign', falls short, in my view, of the standard of conduct expected of a sitting councillor. The applicant was aware of the City's plan to improve the FHI score and he knew that the residents of the City would be interested in knowing that. In such circumstances, it is incumbent on the applicant as a sitting councillor, due to his fiduciary duty to provide information, such as the FHI link, contextual information as to the reasons behind the FHI score or further information as to what may impact on the FHI score for the City.
Counsel for the intervener submits that the applicant could have reposted the City's response (Mr Glass' submission) which directly responded to the Advertisement and the Article and which provided further transactional context to explain some of the reasons behind the FHI score. It is not enough, in my view, for the applicant to assert that someone else posted Mr Glass' submission on the applicant's Facebook page or that someone else had made a comment. It cannot be assumed that people will go back through old posts on the applicant's Facebook page to follow the discussion. In my view, given that the City would be in the best position to comment on the City's finances, and that Mayor Milner's evidence is that he did not have knowledge of the budget discussion in relation to the relevant years, it is reasonable and appropriate for the applicant to have supplemented the Facebook Posts by, at the very least, sharing Ms Glass' submission when it had been published.
Second, while it is appropriate for the applicant to raise issues relevant to the residents of the City in his role as a sitting councillor, it is also incumbent on the applicant to maintain the City's values by communicating and promoting the City's vision pursuant to the Code of Conduct.
While the applicant may agree with the opinion in the Article, he discredited or caused damage to the City, the council and Ms Doherty in circumstances where he did not know what was discussed in the budget briefing sessions, which may have been relevant to the opinion contained in the Article. The applicant should have provided information or context of which he had knowledge to prevent damage to the reputation of the City, the council and Ms Doherty.
Third, the role of a sitting councillor includes representing the interests of electors, ratepayers and residents and providing leadership and guidance to the community.
The Article and its contents is a topic of interest and of relevance to the members of the South Perth community. While it is appropriate for the applicant to highlight the Article, in order to serve the community properly, it is also important that the applicant as a sitting councillor communicate with the people he represents and to raise and discuss issues in an appropriate and responsible manner. Unlike Shannon and Local Government Standards Panel [2020] WASAT 50 at [52] where the councillor stated a number of facts that she believed to be correct, in the circumstances of this case during an election campaign, where the applicant's evidence is that he was not of the view that the Article was 'entirely false, to remain silent, particularly after Mr Glass' submission which the applicant was critical of both as to its inconsistencies with the MyCouncil website and as to the inconsistencies with Ms Doherty's Media Release, without giving any commentary, discussion or explanation fell short of the standard of conduct required of a sitting councillor.
Importantly, reg 7(1)(b) of the Regulations does not prohibit a council member from questioning or even critising the actions of others which impact on the community. It only limits the freedom of a councillor to communicate matters in such a way which constitutes an improper use of a councillor's office and in a way which intends to cause detriment to another.
Fourth, the fact that the applicant considers he was not of the view that the Article was 'entirely false' or that the Facebook Posts were made in the interest of the residents of the City does not, in my view, excuse the applicant from his obligations under the Code of Conduct. The Code of Conduct provides that councillors should avoid damaging the reputation of the City (clause 1.1 of the Code of Conduct). Further, the Code of Conduct provides that councillors should respect the values of the City and be responsive to community views, but should also faithfully communicate and promote the polices and decisions of the council (clause 3.2 of the Code of Conduct).
Fifth, Mr Glass' submissions on 4 October 2019 stated in part:
•the City was not 'going broke';
•there had not been a 'dramatic' decline in council finances, in fact the opposite was 'emphatically' true;
•the FHI was considered by many to be flawed and subject to timing distortions thereby rendering it unreliable;
•nothing could be 'further from the truth' that the City's cash reserves were 'out of control';
•Council had resolved to reduce the 2019/20 rate increase to 1% based on Consumer Price Index (CPI), rather than the Local Government Cost Index (LGCI) which had adversely impacted the ability to deliver an operating profit. However, the City had undertaken many initiatives to continue to improve its financial health; and
•while the City may have had an operating loss, it was still financially viable.
In my view, the applicant as a sitting councillor would have been aware that the City's financial health was a complex issue that involves taking into account many factors. Despite Mr Glass' submission, which directly contradicted information in the Article as set out above, the applicant continued to remain silent and made no comment on his Facebook page. In my view, a reasonable person, in the circumstances of this case would conclude that the applicant contravened the standard of conduct that would be expected of a sitting councillor with the knowledge of the duties, powers and authorities of a councillor.
Sixth, as with all local government business, finance is a matter for discussion and resolution by the council. The applicant was a sitting councillor and a participant in the decision-making process of the City. While the applicant is entitled to share information about the City's finances and its FHI, it is incumbent on the applicant as a sitting councillor in sharing information to do so in a way that achieves a strong sense of shared purpose and commitment to further the interests of the local government as a whole and its operations.
Seventh, to the extent that other councillors shared the same views as the applicant,[22] the Facebook Posts of those councillors refer to the FHI information only without any reference to the Article. To that extent, in my view, those councillors have not reflected adversely upon the character of, or actions of, or imputed any motive to, another member of an officer of local government.
[22] Exhibit 1, HB at pages 231-234.
Finally, while the applicant did not write the Article, and as counsel for Mayor Milner submits, the applicant simply made the Facebook Posts, which amounts to no more than 'to question … 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]), this must be read in conjunction with the remainder of the paragraph in Treby which provides as follows:
[A] councillor is able to meaningfully participate in the good government of the persons in the district and to duly, faithfully, honestly and with integrity fulfil the duties of the office for the people in the district according to his or her best judgment and ability, without reflecting adversely upon the character or actions of, or imputing any motive to, another member or an officer of the local government. Indeed, good government requires courtesy amongst those elected to govern.
In other words, reg 7 of the Regulations does not prohibit the applicant from questioning or criticising the actions of others in relation to the finances or the management of those finances by the City, provided that it is done without adversely reflecting upon the character or actions of, or imputing any motive to the City, the council or another officer of the local government.
In conclusion, in my view, the applicant, as a sitting councillor, made the Facebook Posts (which reg 7 of the Regulations does not prohibit), but in doing so failed to meet the standard of conduct that a reasonable person with knowledge of the duties, powers and authority of a councillor and the circumstances of this case in regards to the Facebook Posts that would be expected.

Issue 5 Would a reasonable person consider that the applicant did not meet the standards of conduct of a councillor when he posted the Article to his Facebook page and three other South Perth community Facebook pages in the run up to the local government election and did not remove the Facebook Posts until after he had been elected as Mayor of the City?

Counsel for Mayor Milner submits that the factual contentions in the Article are not disputed and are based on the information publicly available on the MyCouncil website.
It is Mayor Milner's evidence that the Article remained on his Facebook until he changed his election campaign Facebook page to a new Facebook page as Mayor of the City. Mayor Milner gave evidence that all of his Facebook Posts made during the campaign (with comments related specifically to the campaign) were deleted following the election on or about 19 October 2019.
I accept the Facebook Posts were deleted after the election. However, for reasons already set out above, in my view, a reasonable person, with knowledge of the duties, powers and authority of a councillor and the circumstances of this case, would conclude that the applicant contravened the standard of conduct that would be expected of a person in the applicant's position as a sitting councillor.

Issue 6  Did the applicant act improperly in breach of reg 7(1)(b) of the Regulations because he posted the Article without any further commentary, explanation or context as to some of the contributing factors regarding the City's low FHI?

Counsel for Mayor Milner rejects the Panel's and counsel for the intervener's interpretation of reg 7(1)(b) of the Regulations, in particular with reference to reg 3 of the Regulations because the Panel and the intervener say, a councillor cannot criticise the council, and if the councillor does, he or she can only do so in circumstances where the councillor makes reference to 'the other side's argument', whether that be in the form of Mr Glass' submission or other references.[23] Further, counsel for Mayor Milner submits that neither Ms Doherty's nor Mr Glass' submissions put 'the other side's argument'.
[23] ts 78, 27 May 2021.
Counsel for Mayor Milner submits that the applicant did not have the ability to supplement the Article with commentary, discussion or explanation containing information that he knew to be correct. This is because, according to Mayor Milner, as stated in the Article, details about the City's finances were being withheld from councillors. Further, counsel for Mayor Milner submits that the Article was posted during the election campaign and opinions contrary to those set out in the Article were expressed by others including in Ms Doherty's Media Release, Ms Doherty's Facebook post on 26 September 2019 and Mr Glass' submission. Further, counsel for Mayor Milner submits that a reference to a reduction in rates for the City would not provide readers of the Facebook Posts with valuable additional context because any reduction in rates in 2019 could not have caused the drop in the City's FHI referred to in the Article and would only have started to take effect from the 2019/20 financial year.
In addition, counsel for Mayor Milner submits that it did not appear common practice during the election campaign for City officers or employees to post additional commentary or context comprising competing views when posting documents to social media. Counsel for Mayor Milner says that there is no evidence before the Tribunal that other participants in the election campaign made assertions that were open for public debate where all sides of that debate were detailed alongside the assertions. Counsel for Mayor Milner gave the example of Ms Doherty's Media Release where she did not set out any competing views. It is counsel for Mayor Milner's position that the applicant's conduct was at all relevant times consistent with the prevailing norms in the election campaign and to the extent that the issue of the City's FHI was the subject of the debate, both sides of the debate were being fully publicly ventilated.
I find the Article discussed the health of the City's finances by reference to the content of the MyCouncil website, which calculates the FHI score for local governments in Western Australia. Further, I find contrary opinions to those in the Article were expressed by others including Ms Doherty's Media Release and her Facebook post on 26 September 2019 and Mr Glass' submission.
According to counsel for Mayor Milner, counsel for the intervener in correspondence suggested that the applicant should have stated in the Facebook Posts that, 'Some decisions which readers of the posts may have welcomed, such as limiting the increase in rates, may have had a negative impact on the FHI'.[24] In response to this suggestion, counsel for Mayor Milner questioned as to why the applicant would only mention that when there is a whole lot of other issues that could impact on the City's FHI, such as expenses incurred by the City including in relation to things like the operation of the libraries and other community facilities, parking decisions with fees, funds to pay out retirement village residents and legal fees incurred by the City.[25] In addition, counsel for Mayor Milner submits that the impact of rates is not applicable to any of the FHI scores. The whole point of the FHI scores, according to counsel for Mayor Milner, is to circumvent this type of analysis.[26] Counsel for Mayor Milner submits that there was a link to the MyCouncil website (on his Facebook page on 27 September 2019) and in any event the website was referred to in the Article.
[24] ts 40, 27 May 2021.
[25] ts, 40-41, 27 May 2021.
[26] ts 41, 27 May 2021.
In addition, according to counsel for Mayor Milner, correspondence from counsel for the intervener suggested that the applicant should have referred to the fact that the council at budget briefing sessions in 2018/19 had decided to take steps to improve the FHI in the short to medium term. Counsel for Mayor Milner's response to that suggestion was 'that's all pretty glib' and that the budget briefing sessions did not address the essential thrust of the Article, which was the denial of financial information.[27]
[27] ts 44, 27 May 2021.
Mayor Milner gave evidence that he was aware that the City had undertaken to improve the FHI scores over the next two to four years as it had been discussed at the budget workshops.[28] Further, Mayor Milner was of the view that the community of South Perth would have been interested to know the City's plans to improve the FHI scores over the next two to four years, however, he did not know what those plans were at that time.[29]
[28] ts 58, 27 May 2021.
[29] ts 58, 27 May 2021.
Mr Glass' submission was inconsistent with Ms Doherty's Media Release in that Ms Doherty stated the FHI could be relied upon, whereas Mr Glass stated the FHI for the City was incorrect and should be reviewed. To the extent that either of the statements made about the City's FHI differed to that reported on the MyCouncil website, that statement is also inconsistent with the MyCouncil website. Mayor Milner's evidence is that he was not confident that Mr Glass' submission was accurate but that he was able to verity the FHI scores in the Article to the MyCouncil website.[30]
[30] Exhibit 1, Mayor Milner witness statement dated 11 May 2021 at para 95, HB at page 281..
For the reasons already set out above at [67][83], in my view, it was incumbent on the applicant in the circumstances of this case to provide accompanying commentary, discussion or explanation in posting the Article to Facebook.

Issue 7 Is the construction of reg 7(1)(b) of the Regulations advanced by the intervener inconsistent with the ordinary and natural construction of the regulation and does it therefore operate inconsistently with the implied freedom of political communication?

Counsel for the intervener's submission as to the purpose of reg 7(1)(b) of the Regulations is:[31]
[I]t would be contrary to the purposes of the Regulations to adopt a narrow construction of [reg 7(1)(b)] by confining the use of a councillor's office for circumstances where the person is performing a formal role or function under the [LG] Act.
[31] ts 67-68, 27 May 2021.
Counsel for Mayor Milner submits that the complaint arose in the context of an election campaign and that every member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters affecting the people of Australia.
Relying on Treby at [51] counsel for Mayor Milner submits that the interest of each member of the Australian community has in such discussions extended the categories of qualified privilege and those categories are now recognised as protecting a communication made to the public on a government or political matter. In addition, relying on Bradley and Local Government Standards Panel [2012] WASAT 44 (Bradley) at [45] counsel for Mayor Milner submits that councillors are not to be criticised for attempting to represent their constituency and community interests to the best of their abilities. Further, relying on Bradley at [47], counsel for Mayor Milner submits that in the circumstances of this case a 'bureaucratic hoop' was put up, with the benefit of hindsight, to fetter the applicant's free speech.

Further, counsel for Mayor Milner, relying on Bradley at [46] and Liberal Party of Australia (Western Australian Division) INC v City of Armadale [2013] WASC 27, submits that the duties imposed upon councillors by the Regulations must be read in light of practical and political realities including that political free speech is an important part of the fabric of the body politic of democracies. It was submitted by counsel for Mayor Milner that if the duties imposed on councillors is 'artificially and unrealistically inflated', this may tend to have a 'chilling effect' on local political speech and communication, a result which should not be attributed to Parliament.
Counsel for Mayor Milner submits that the interpretation of reg 7(1)(b) of the Regulations as put by counsel for the intervener should be avoided because such an interpretation would prohibit sitting councillors from sharing publicly available information on social media, even when the information is correct, without providing some additional 'commentary, discussion or explanation' of the information. The proposed construction put forward by counsel for the intervener, according to counsel for Mayor Milner, would mean that no sitting councillor could make any public statement critical of the City, the council, or any other person in association with their position as a sitting councillor without, setting out what they perceive to be any argument to the contrary. Such a construction, submits counsel for Mayor Milner, would be inconsistent with the natural and ordinary meaning of the words of reg 7(1)(b) of the Regulations and in particular, the notion of a councillor making improper use of his or her office and the implied freedom of political communication.
With respect, I do not accept counsel for Mayor Milner's submission. As explained above at [67][83] I am unable to accept that reg 7(1)(b) of the Regulations prohibits a sitting councillor from making a public statement critical of the City, the council or any other person in association with their position as a sitting councillor. That regulation only limits the freedom of a councillor to communicate matters in such a way which constitutes an improper use of a councillor's office and in a way which intends to cause detriment to another. Importantly, as stated in Treby at [56][57], a councillor is able to meaningfully participate in the good government of the City, even when a public statement is made, such as the Facebook Posts, provided it is done without reflecting adversely upon the character or actions of, or imputing any motive to, another member or an officer of the local government.
Mayor Milner's evidence is that he had no intention of causing detriment to any other party. According to Mayor Milner his intention was, in the context of an election campaign, to share the Article which raised issues of concern to the residents of the City. Because of this, counsel for Mayor Milner submits there was no impropriety in him sharing the Article on Facebook. Further, counsel for Mayor Milner submits that the relevant issues discussed in the Article were drawn from the objectively assessed FHI and by posting the Article the only evidence is that the intention of the applicant's conduct was to highlight legitimate concerns about the financial health of the City and that the applicant was being denied financial information.
It is counsel for Mayor Milner's submission that the Article had been published in The West Australian with a readership of 440,000 compared to the 279 followers on the applicant's Facebook page, before the applicant made the Facebook Posts. Because of this, counsel for Mayor Milner submits that it is difficult to see how any detriment may have occurred to the City, the council, Ms Doherty or to any other person. Counsel for Mayor Milner submits that the identification of issues of concern for the City, including the City's FHI, is of benefit for the City and its council and not a detriment. Relying on Treby at [56], counsel for Mayor Milner submits that provided civility is maintained, criticism does not automatically amount to an intention to cause detriment.
In addition, counsel for Mayor Milner submits that the removal of the applicant's Facebook sites after the end of the election campaign and that the applicant's Facebook page became the Facebook page of the Mayor of the City, rather than a candidate running for Mayor, is entirely ordinary and orthodox and no adverse inference is available or should be drawn from it.
In conclusion, counsel for Mayor Milner submits:[32]
[A]nd at the end of the day, the whole thing became, as a debate, redundant, because [the applicant] had then become Mayor and was able to get the information that he was seeking. And so far as the City and the [c]ouncil are concerned, ... this is something that actually doesn't work against the interests of the City and the Council, in fact, it's working in favour of the interest of the City and the Council. In fact, as Mayor Doherty was pointing out, the [c]ouncil had resolved to improve the City's FHI results. …[O]ne can conclude, they thought there was a problem with those results.
…
The identification of financial issues of concern is of benefit to the City and its Council. That's the nature of these things when politicians including, in effect, opposition politicans call out financial difficulties, or indeed, irregularities. To have otherwise is a definition, virtually, of a tinpot dictatorship, where you can only refer to these things if you're complimentary[.]
[32] ts 51, 27 May 2021.
Counsel for the intervener, relying on Treby at [53]-[54], submits that this issue should be answered in the negative because:[33]
[E]ven 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. The applicants submitted that if [reg 7(1)(b)] was construed in the manner I have outlined above, it would not be reasonably appropriate and adapted to a legitimate end. They submitted that a construction of [reg 7(1)(b)] which would be appropriate and adapted to a legitimate end was that if there was a good faith belief and no malicious intent, then elected members of a council should be permitted to publicly discuss any matter that the public was entitled to receive. They submitted that the standard in Theophanous and Lange was the appropriate standard by reference to which their conduct amounts to an improper use of their offices.
[33] ts 75, 27 May 2021.
Counsel for the intervener notes that Bradley at [7] refers to a 'councillor's right to exercise within limits a freedom of political speech'. According to counsel for the intervener, that means the political freedom of speech can be exercised within the limits of the Code of Conduct and the Regulations.
Counsel for the intervener submits, relying on Treby at [58]-[59], that reg 7(1)(b) of the Regulations only limits the freedom of a councillor to engage in such communications in two ways: by doing so in a way which constitutes an improper use of a councillor's office, and by doing so in a way which causes detriment to another person. Further, counsel for the intervener submits that reg 7(1)(b) of the Regulations is reasonably appropriate and adapted to the legitimate end of facilitating the proper consideration and determination of council business, in a manner which is compatible with the system of government established under the Constitution.
In response to the applicant's contention that it is difficult to see how any detriment could have occurred, counsel for the intervener submits that the following comment made on the applicant's Facebook page about the Article is an example of that damage to reputation:[34]
[T]he [c]ouncil's performance has clearly dropped like a stone under the current administration. It's time for change!
[34] Exhibit 1, HB at page 369.
Counsel for Mayor Milner rejects that the above statement is evidence of the applicant's intention.
In conclusion, relying on Treby at [94][96] counsel for the intervener submits that the applicant believed that the intended result of the Facebook Posts would cause damage to the City, the council and Ms Doherty's reputation with respect to the management of the City and the City's finances and thereby suffer by extension a detriment. Further, counsel for the intervener submits that the removal of the Facebook Posts was not done until after the applicant was elected as Mayor of the City, because the applicant believed that the intended result of his Facebook Posts would be that the City, the council and Ms Doherty would suffer a detriment as a result and consequently allowed them to remain until the detriment was no longer intended.
Sitting councillors owe fiduciary obligations to their local government. An essential feature of those obligations is an absence of intent by the sitting councillor to cause detriment to any party or to advance his or her personal interests.
The circumstances surrounding the applicant making the Facebook Posts are as follows. First, Ms Doherty's Media Release rebutting the Advertisement that the City is not financially stable. Second, the applicant made the Facebook Posts during the election campaign in which he was seeking to be elected as Mayor of the City which was likely to stir up strong feelings and tension within the South Perth community. Third, the Article discussed serious financial matters and raised some controversial issues relating to the City's FHI which there was clear disagreement stemming from the reliability of the data contained in the MyCouncil website that the Article quoted from. Fourth, the Article contained an image of Ms Doherty as Mayor at the time on the backdrop of a chart showing a decline in the FHI and asking the question in bold, 'Is the City of South Perth going broke?' Fifth, Mr Glass' submission directly rebutted the Article's proposition that the City's finances were in decline. Sixth, the Article was posted on the applicant's Facebook page and also three community Facebook pages. Seventh, the Facebook Posts were deleted following the applicant's election to Mayor of the City on or about 19 October 2019.
It is Ms Doherty's evidence, as stated in her complaint, that the posting or republishing of the Article, 'which contained a prominent image of [her] as Mayor at the time was particularly humiliating and hurtful and malicious'. I accept that Ms Doherty would have been humiliated and hurt by the Article.
While counsel for Mayor Milner submits that this was 'all part of a general debate' and any person following the debate would receive the postings on the community Facebook pages such as Mr Glass' submission and Ms Doherty's Press Release,[35] in my view, the applicant knew, or should have known, that by making the Facebook Posts, the public perception of the City, the council and Ms Doherty would be lowered. I therefore conclude that it is more likely than not that the applicant believed that the intended result of making the Facebook Posts would be that the City, the council and Ms Doherty would suffer detriment. In the circumstances of this case, I am satisfied that it is more likely than not that the applicant when he made the Facebook Posts did so in order to target the South Perth community to cause detriment to the City, the council and to Ms Doherty as the then Mayor of the City, by calling into question the management of the City's finances and thereby contravened reg 7(1)(b) of the Regulations.
[35] ts 79, 27 May 2021.
The result is that I would affirm the decision of the Panel of 16 September 2020 in relation to the finding of the one minor breach or reg 7(1)(b) of the Regulations.
Finally, I turn to explain how the minor breach of reg 7(1)(b) of the Regulations is to be dealt with under s 5.110(6) of the LG Act.

Issue 9 If the applicant's conduct does amount to a breach of reg 7(1)(b) of the Regulations, what is the appropriate sanction?

The applicant gave the following reasons as to why no sanction should be imposed against him:[36]
[36] Exhibit 1, Panel's Decision and reasons for decision, HB at pages 17-18.
There has been no finding of dishonesty against him.
The context, against which his actions should be considered, required further clarification/detail (which was provided).
He acknowledged that he should have provided an accompanying commentary, discussion or explanation when he shared the Article on Facebook. However:
•he has acted in good faith;
•there were several mitigating factors; and
•he was justified in his actions.
It is important to bear in mind the mitigating factors that were set out in the response submissions, as well as the very low risk of further misconduct by him.
His achievements as a councillor were significant: he also contributed to several boards and community groups (mostly on a voluntary basis). He was of high standing and impeccable character in the community. Therefore, the publication of the Finding would significantly damage his reputation.
Counsel for Mayor Milner states that Ms Doherty engaged in an active campaign against the applicant. In making this submission, counsel for Mayor Milner made reference to the series of complaints (refer above at [16]) made by Ms Doherty, including allegations of dishonesty, each of which, other than the present matter, was dismissed by the Panel. Further, counsel for Mayor Milner submits that Ms Doherty made use of her office to disparage the applicant on numerous occasions including on 26 September 2019 where Ms Doherty posted on her Facebook page (which indirectly identified her as the Mayor of the City) that 'one local candidate' was involved in a 'scare campaign' where the candidate was the applicant as Ms Doherty publicly supported the only other candidate for Mayor of the City, a Mr Travis Burrows. It is in such circumstances, counsel for Mayor Milner submits that it would be inappropriate for Mayor Milner to be required to apologise to Ms Doherty in the manner proposed by the Panel.
In submissions to the Panel for the purpose of assessing penalty, counsel for Mayor Milner submitted that the ability of the applicant to supplement the Facebook Posts with accompanying commentary, discussion or explanation was severely limited and this is a mitigating factor when assessing Mayor Milner's conduct. In particular, the applicant says, and it was reported in the Article, that information as to the City's finances was withheld from councillors. Further, in assessing a penalty, counsel for Mayor Milner submits that the significance of Mr Glass' submission also needs to be seen in the context that the applicant's ability to check the validity of the submission was limited in that Mr Glass was privy to information that was not available to sitting councillors. Counsel for Mayor Milner submits that it is mitigatory that the responsive argument to the Article was by no means clear and that the applicant reasonably disagreed with a large portion of Mr Glass' submission.
Mayor Milner's evidence is that he relied upon the MyCouncil website and the FHI scores in good faith and relied upon an independent State Government analysis specifically designed to provide the public with an objectively ascertained comparative score.
Counsel for Mayor Milner submits that the applicant, therefore, had deliberately sought to refer to the Article given, insofar as it referred to the City's finances, based on the MyCouncil website and FHI scores. Counsel for Mayor Milner submits it is mitigatory that the applicant was reluctant to later make reference to Mr Glass' submission and, in order to properly deal with that submission, provide an analysis of its content, given that:
a)The applicant disagreed with much of its content, such as the manner in which Mr Glass sought to contend that past FHI score calculations should be revised down and that account should be taken of a projected FHI score for 2018/19 (which was inconsistent with Ms Doherty's Media Release).
b)The applicant's ability to comment and analyse Mr Glass' submission and Ms Doherty's Media Release was hampered by his lack of access to the City's financial information upon which those documents were based.
c)Any such commentary and analysis would have involved the applicant necessarily needing to provide various financial details and submissions that his attempt to rely upon the MyCouncil website and the objectively calculated FHI scores had sought to avoid.
Finally, counsel for Mayor Milner submits that the applicant's conduct, for the purpose of assessing penalty, must be seen in the following context:
a)The contrary opinion to that advanced in the Article regarding the City's finances was available to the public to readily see. Not only was that contrary opinion the subject of Ms Doherty's Press Release and Mr Glass' submission circulated widely, including on the City's website, Mr Glass' submission was posted on the relevant Facebook pages by others on 6 October 2019. The issues, the subject of the debate regarding the City's finances were well ventilated by both sides of the argument.
b)Ms Doherty openly and vigorously supported the only opposing candidate to Mayor Milner in the October 2019 election, Mr Burrows. Ms Doherty's Facebook posts provide examples of the attacks made by Ms Doherty upon the applicant, including (by way of innuendo) that the applicant was 'beholden to financial support from developers'. Such unjustified attacks on the applicant is mitigatory as to penalty that Ms Doherty as the complainant and a person who claims that the conduct caused detriment to her, acted in this manner. The extent of the ongoing animosity shown by Ms Doherty to the applicant is illustrated by the number of complaints that have been brought by her since the election in October 2019 that have been dismissed. Dealing with such unjustified complaints have already exposed the applicant to considerable unnecessary stress, expense and expenditure of time.
The publication of the finding against Mayor Milner will, according to counsel for Mayor Milner, in itself, represent a significant penalty to him and a deterrent to any similar conduct in the future by him or others. Also, it is submitted that Mayor Milner's reputation will be significantly damaged by the publication. Finally, counsel for Mayor Milner submits that someone in the applicant's circumstances should not be required to have some form of re-training, because it would turn the re-training into a penalty because of the inconvenience it would cause rather than it being shown that there is a need materially for the applicant to obtain training such that the training would serve a useful education purpose.
Counsel for the intervener submits that the sanctions decided by the Panel are appropriate in this case.
Section 5.110(6) of the LG Act provides that the Tribunal is to deal with the breach by dismissing the complaint or ordering one or more of the following in that the person is to be publicly censured or publicly apologise or undertake training as specified in the order. The purpose of imposing a sanction is to generally reflect the community's disapproval of a contravention of reg 7(1)(b) of the Regulations and thereby to maintain appropriate standards of behaviour by councillors (Treby at [123]).
Counsel for Mayor Milner made various statements about Ms Doherty, see for example above at [119]. Ms Doherty is not a party to this proceeding. The Tribunal has not, and cannot in this proceeding make any adverse findings against Ms Doherty.
In my view the correct and preferable decision is that the minor breach committed by the applicant warrants the imposition of a public apology only. In reaching that conclusion I have relied on the following considerations.

First, Mayor Milner displayed a misunderstanding of reg 7(1)(b) of the Regulations, not only by his conduct, but also by his submissions.
Second, these published reasons and the public apology should be sufficient to educate Mayor Milner in regards to the standard expected of him as a local government councillor, and in particular reg 7(1)(b) of the Regulations. Training of no less than 10 hours on 'Serving on Council' would, in my view, in the circumstances of this case, serve little useful educational purpose for the applicant.
Finally, the applicant has not previously committed a breach of reg 7(1)(b) of the Regulations.
In these circumstances, the imposition of one sanction from those permitted under s 5.110(6)(b) of the LG Act is appropriate and an adequate reflection of the degree of seriousness of the minor breach. It follows that I would vary the decision of the Panel only in relation to the sanction imposed for the minor breach committed by the applicant. Therefore, with minor modification to the wording of the apology to better reflect the conduct that is being sanctioned, I will order Mayor Milner to make the apology at the next available council meeting following 28 days from the date of this decision. The terms of the order are attached to these reasons and marked 'Annexure A'. The terms will also be attached to the orders provided to the parties.

Conclusion

The challenge to the Panel's decision was as to the merits of the decision and as to the penalty imposed if the decision of the Panel was to be affirmed. For the foregoing reasons, I am satisfied that the evidence in this case supports the conclusion that it is more likely than not that the applicant committed one minor breach of reg 7(1)(b) of the Regulations by making improper use of his office as a councillor of the City to cause detriment to the City, the council and to Ms Doherty. This breach constitutes a minor breach under s 5.105(1) of the LG Act. I would therefore affirm the decision of the Panel in relation to the minor breach.
Finally, while I agree with the decision of the Panel that a public apology is appropriate, I do not consider that the applicant is required to undertake a training course. I would order for a public apology only. The terms of which are attached to these reasons and marked 'Annexure A'.

Orders

The Tribunal orders:
1.The decision of the Local Government Standards Panel made on 28 November 2020 in respect of SP 032 of 2020, that the applicant, Mayor Greg Shane Milner, committed one minor breach of the Local Government Act 1995 (WA) by once contravening reg 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007 (WA), is affirmed.
2.The orders of the Local Government Standards Panel made on 28 November 2020 in relation to the sanctions to be imposed on the applicant, Mayor Greg Shane Milner, for the one minor breach in SP 032 of 2020 is varied, as attached to this order and marked 'Annexure A'.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R PETRUCCI, MEMBER
6 AUGUST 2021