MORRISSEY and LOCAL GOVERNMENT STANDARDS PANEL
[2023] WASAT 67
•21 JULY 2023
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION: MORRISSEY and LOCAL GOVERNMENT STANDARDS PANEL [2023] WASAT 67
MEMBER: MS KY LOH, MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 21 JULY 2023
FILE NO/S: CC 1596 of 2022
BETWEEN: KAREN DIANE MORRISSEY
Applicant
AND
LOCAL GOVERNMENT STANDARDS PANEL
Respondent
ATTORNEY GENERAL OF WESTERN AUSTRALIA
Intervenor
Catchwords:
Local government - Model code of conduct - Whether model code was adopted by the Shire - Whether the councillor had used her office as council member
Legislation:
Local Government (Administration) Regulations 1996 (WA), reg 34D, reg 34D(1), reg 34D(2)
Local Government (Model Code of Conduct) Regulations 2021 (WA), Sch 1, cl 4(1)(a), cl 6(a), cl 8(1), cl 9(c), cl 18, cl 18(1)(b), cl 19, cl 22
Local Government (Rules of Conduct) Regulations 2007 (WA) (repealed)
Local Government Act 1995 (WA), s 1.9, s 2.6(1), s 2.6(3), s 2.7(1), s 2.10, s 3.1(1), s 3.3, s 5.3, s 5.20(1), s 5.23, s 5.41, s 5.103, s 5.104(1), s 5.104(2), s 5.104(3), s 5.104(5), s 5.104(7), s 5.105, s 5.105(1), s 5.105(1)(a), s 5.105(1)(b), s 5.106, s 5.107(1), s 5.107(2), s 5.107(3), s 5.110(1)(a), s 5.110(2)(a), s 5.110(6), s 5.110(6)(b)(ii), s 5.125, Pt 5, Div 9
Shire of Mount Magnet Standing Orders Local Law 2018 (WA)
State Administrative Tribunal Act 2004 (WA), s 17, s 27(1), s 27(2), s 27(3), s 29(3)(c)(ii), s 31
Result:
Application allowed
Category: B
Representation:
Counsel:
| Applicant | : | N/A |
| Respondent | : | No appearance |
| Intervenor | : | N/A |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | N/A |
| Intervenor | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Kunze and Local Government Standards Panel [2021] WASAT 159
R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13
Treby and Local Government Standards Panel [2010] WASAT 81
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
In January 2022, a council member of the Shire of Mount Magnet, Karen Morrissey (the councillor), wrote a letter to the acting chief executive officer of the Shire, carbon-copied to the Shire President, objecting to the Shire's actions of advertising, and renting a hall, for COVID-19 vaccination clinics.
The councillor personally gave the letter to the acting CEO, and agreed for the letter to be shared with the other councillors.
The councillor's letter was included in the agenda for the ordinary meeting of council for the Shire scheduled for 23 February 2022.
Following a complaint lodged about the letter, the Local Government Standards Panel found that there had been a minor breach by the councillor of cl 18 of Sch 1 to the Local Government (Model Code of Conduct) Regulations 2021 (WA) (the Regulations) (referred to by the parties as 'regulation 18') on the basis that she had made improper use of her office as councillor to cause detriment to the local government and the State government.
On 4 October 2022, the Panel dealt with the minor breach by ordering that the councillor make a public apology.
The councillor seeks a review of the finding of a minor breach and the sanction imposed, contending that the intention of the letter was only to advise the Shire, and the decision to include the letter in the agenda was solely that of the acting CEO.
The Attorney-General, as intervenor, submits that there is insufficient evidence that the councillor intended to cause detriment to the local government or the State government.
Ultimately, for reasons set out below, I am not satisfied that the councillor has used her office in any relevant manner, and will order that the Panel's finding of a minor breach, and order of sanction, be set aside.
Issue for determination
The primary issue for determination is whether the councillor has committed a minor breach under s 5.105 of the Local Government Act 1995 (WA) (the Act).
In considering the primary issue, the following secondary issues arise:
(1)Did the councillor contravene:
(a)cl 18 of Sch 1 to the Regulations?
(b)cl 19 of Sch 1 to the Regulations?
(c)cl 22 of Sch 1 to the Regulations?
(d)reg 34D of the Local Government (Administration) Regulations 1996 (WA) (the Administration Regulations)?
(2)If the answer to (1) is yes, what is the correct and preferable decision as to an order regarding sanction under s 5.110(6) of the Act?
Factual Background
The following background facts are not in dispute between the parties or are otherwise based on uncontentious documents.
The councillor was, and is, at all relevant times, an elected member of the council of the Shire.
The councillor wrote the letter dated 28 January 2022, addressed to the acting CEO of the Shire, carbon-copied to the Shire President, and signed at the bottom of the letter 'Cr Karen Morrissey'.
The subject heading of the letter is 'RE: OBJECTION', and contains the following relevant statements:
I would like to advise the Shire of Mount Magnet that:
1.I object to the Shire Council's publication 'Council Comments' being used to advertise the covid vaccination clinics in Mount Magnet, which uses false and misleading information.
In November issue of Council Comments, the WA Government Roll up for WA advertisement Get the Facts of the Vax Truth or Myth - is largely misinformation.
The two most serious published lies are that 'The vaccines are safe' and 'We do know every ingredient that is in the vaccines'.
[sets out her opinion challenging the above 2 statements]
2.I object to the Shire of Mount Magnet hiring the ANZAC Hall out to the State Government representative to inject people with this experimental product[.]
The letter was included in the agenda to the council meeting of 23 February 2022.
The minutes of that meeting record that the councillor did not attend that meeting, although the minutes record discussion about the letter at the meeting at public question time by attendees who were not noted as councillors.
On 2 March 2022, a person lodged a complaint in respect of the letter, alleging that the councillor had committed a minor breach in breach of cls 18, 19 and 22 of Sch 1 to the Regulations and reg 34D of the Administration Regulations.
The complaint was forwarded to the department assisting the Panel (the Department of Local Government, Sport and Cultural Industries), who then sought the councillor's comments.
The councillor provided comments to the complaint on 29 March 2022, indicating 'No' to the questions as to whether she accepted the information detailed in the complaint, and whether she accepted that she committed the alleged conduct as detailed in the complaint.
On 27 June 2022, the Panel found that the councillor, in writing the letter which was included in the agenda and minutes of the ordinary council meeting of 23 February 2022, had committed a minor breach under the Act and cl 18 of the Regulations, but found that the councillor did not breach cls 19 or 22 of Sch 1 to the Regulations or reg 34D of the Administration Regulations.
Significantly, the Panel found that the letter was inconsistent with the Shire's published code of conduct prohibiting improper or derogatory allegations and communicating in a manner that was not accurate, polite, or professional, and the language in the councillor's letter indicated an intention to cause detriment to the State government.
Upon notice of the finding, the councillor enquired on 14 July 2022 whether there was 'a course of Appeal for a Minor Breach finding'.
The councillor was then invited to make submissions on how the Panel should deal with the breach, and on 21 July 2022, whilst stating that she was not 'giving an answer in this matter', she also relevantly stated that:
…
With regards the process of the letter - I had written this to the then Acting CEO cc Shire President and personally given this to the Acting CEO. It was the Acting CEO who asked if I wanted it to go forwards to the other councillors. To say no would imply secrecy between my view and the Councillors[.]
On 4 October 2022, the Panel ordered that, pursuant to s 5.110(6)(b)(ii) of the Act, the councillor make a public apology in the terms stated in the order.
On 1 November 2022, the councillor applied to the Tribunal for review of a decision of the Panel, which she confirmed later in submissions was an application for a review and dismissal of the decision by the Panel 'to impose a minor breach with the ordering of a sanction'.
The councillor's case
The councillor challenges an underlying assumption in the Panel's determination that she was involved in including the letter in the agenda and the minutes.
She says that she had hand-delivered the letter to the acting CEO, and when asked by the acting CEO, had agreed for the letter to be shared with the other councillors.
She contends that her intention was for the acting CEO, with the Shire President, to address the issues in the letter, and accepts that the letter should not have been included in the agenda for that meeting as it was a matter she expected to be addressed by the acting CEO and the Shire President.
She says that once she provided the letter to the acting CEO, whatever transpired after that remained within the acting CEO's control, authority and guidance.
The councillor relies on the following advice or instruction provided in the WA Local Government Association (WALGA) elearning training:
(a)the CEO is charged with the responsibility to prepare the agenda (with admin staff, under the CEO's direction) (WALGA e-learning Meeting Procedures);
(b)no individual council member can instruct or direct the CEO to complete a task (WALGA e-learning Role of Council); and
(c)the CEO's duty is to ensure Council is provided with sufficient information about the local government legislative and legal obligations and implication of potential options so that informed decisions can be made (WALGA e-learning Understanding Local Government).
The Panel's role and the Intervenor's submissions
The Panel filed all documents which were relevant to the proceedings, and otherwise did not play an active role in the proceedings.
This is appropriate given the risk that it would endanger the impartiality with which the Panel is expected to maintain in the event that I invite, or send the matter back for, reconsideration of its decision under ss 31 or 29(3)(c)(ii) of the State Administrative Tribunal Act 2004 (WA) (the SAT Act) respectively: see Treby and Local Government Standards Panel [2010] WASAT 81 (Treby) at [16] and R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35-36.
The Attorney-General appears as intervenor to act as a contradictor in these proceedings, and I am grateful for his assistance in this matter, which includes filing a statement of issues, facts and contentions.
In summary, the intervenor submits that although it is open to me to find that the councillor made improper use of her office as councillor in drafting the letter, submitting it to the acting CEO and consenting to it being published to the other councillors, there is insufficient evidence to find that the councillor intended to cause detriment to the local government or the State government.
As such, the intervenor submits that there is insufficient evidence that the councillor had committed a minor breach pursuant to s 5.105 of the Act, and therefore it is inappropriate to order any sanction against the councillor.
Legislative framework
Local Government Act
The general function of a local government is to provide for the good government of persons in its district, and includes legislative and executive functions: ss 3.1(1) and 3.3 of the Act.
The governing body of a local government is its elected council, which, for a shire, comprises the offices of the president, deputy president and councillors: s 2.6(1) and (3) of the Act.
The role of the council is to govern the local government's affairs, and be responsible for the performance of the local government's functions: s 2.7(1) of the Act.
A council is to hold ordinary meetings (s 5.3 of the Act), with decisions having effect only if it has been made by simple majority or by another kind of majority as required under the Act or as prescribed (s 5.20(1) of the Act).
Subject to certain exceptions (which are not applicable in this case), all council meetings are to be open to members of the public: s 5.23 of the Act.
Under s 2.10 of the Act, the role of a councillor is to:
(a)represent the interests of electors, ratepayers and residents of the district;
(b)provide leadership and guidance to the community in the district;
(c)facilitate communication between the community and the council;
(d)participate in the local government's decision-making processes at council and committee meetings; and
(e)perform such other functions as are given to a councillor by the Act or any other written law.
Under s 5.41 of the Act, the CEO's functions are, relevantly, to:
(a)advise the council in relation to the functions of a local government under the Act and other written laws;
(b)ensure that advice and information is available to the council so that informed decisions can be made;
(c)cause council decisions to be implemented;
(d)manage the day to day operations of the local government;
(e)liaise with the president on the local government's affairs and the performance of the local government's functions;
(f)speak on behalf of the local government if the president agrees; and
(g)ensure that records and documents of the local government are properly kept for the purposes of the Act and any other written law.
At all relevant times, Div 9 of Pt 5 of the Act relevantly provides for the conduct of council members to be subject to the model code of conduct (model code) prescribed under the Regulations, which must be incorporated into a code of conduct adopted by a local government, by absolute majority of the council, within three months after the day that the Regulations came into operation: ss 1.9, 5.103, 5.104(1) of the Act.
The model code must include general principles to guide behaviours, requirements relating to behaviour, and provisions specified to be rules of conduct: s 5.104(2) of the Act.
A local government may include in the adopted code of conduct requirements in addition to the requirements relating to behaviour, but any additional requirements can only be expressed to apply to council members or committee members, and are of no effect to the extent that they are inconsistent with the model code: s 5.104(3) of the Act.
The model code is taken to be a local government's adopted code of conduct until the local government adopts a code of conduct: s 5.104(5) of the Act.
The CEO must publish an up-to-date version of a local government's adopted code of conduct on the local government's official website: s 5.104(7) of the Act.
Under s 5.105(1) of the Act, a breach by a council member of a rule of conduct (s 5.105(1)(a)) or a local law under the Act, contravention of which the regulations specify to be a minor breach (s 5.105(1)(b)), constitutes a 'minor breach'.
A complaint about an alleged 'minor breach' can only be made within six months of the occurrence of the alleged breach, must be in writing in an approved form, and must be sent to the complaints officer: s 5.107(1) and (2) of the Act.
The complaint officer must then relevantly forward the complaint to the appointed member of the primary standards panel: s 5.107(3) of the Act.
The appointed member of the primary standards panel must then relevantly allocate that complaint to a standards panel: s 5.110(1)(a) of the Act.
The standards panel must make a finding as to whether the breach alleged in the complaint occurred: s 5.110(2)(a) of the Act.
A finding that a breach has occurred is to be based on evidence from which it may be concluded that it is more likely that the breach occurred than that it did not occur: s 5.106 of the Act.
If a standards panel finds that a council member has committed a minor breach, the breach is to be dealt with by making orders in accordance with s 5.110(6) of the Act, which includes a public apology.
Model Code
The Regulations, which prescribed the model code in Sch 1 to the Regulations, came into operation on 3 February 2021.
Relevantly, division 2 of the model code sets out the general principles to guide the behaviour of council members, including the expectation that a councillor act with reasonable care and diligence (cl 4(1)(a) of the model code), and base decisions on relevant and factually correct information (cl 6(a)).
Division 3 of the model code relevantly sets out the requirements relating to the behaviour of council members and the mechanism for dealing with alleged breaches of those requirements (that is, through the local government).
Such requirements include that a councillor must relevantly ensure that their use of social media and other forms of communication complies with the model code and must only publish material that is factually correct (cl 8(1) of the model code) and must not use offensive or derogatory language when referring to another person (cl 9(c)).
Division 4 of the model code sets out the rules of conduct for, relevantly, council members.
Clause 18 of the model code relevantly provides that a council member must not make improper use of their office to cause detriment to the local government or any other person (cl 18(1)(b) of the model code).
Clause 19 of the model code relevantly provides that a council member must not undertake a task that contributes to the administration of the local government unless authorised by the local government or the CEO to undertake that task.
Clause 22 of the model code relevantly provides that a council member who has an interest in any matter to be discussed at a council meeting attended by the council member must disclose the nature of the interest in a written notice before the meeting or at the meeting immediately before the matter is discussed.
Administration Regulations
Regulation 34D(2) of the Administration Regulations provides that the contravention of a 'local law as to conduct' is a minor breach for the purposes of s 5.105(1)(b) of the Act.
A 'local law as to conduct' is defined as a local law relating to the conduct of people at council or committee meetings under reg 34D(1) of the Administration Regulations.
The Panel has relied on the Shire of Mount Magnet Standing Orders Local Law 2018 (WA) (Shire's standing orders) as constituting the relevant local law as to conduct.
Adopted code of conduct?
The Panel relied on the code of conduct adopted by the council of the Shire on 27 May 2020 (Shire's code) in determining, relevantly, whether the councillor has acted improperly in her office (in particular, clauses 4.1, 4.6 and 4.7 of the Shire's code).
However, the Shire's code was adopted under the predecessor provisions of the Act that applied prior to Regulations coming into operation, which did not require the model code to be incorporated into a local government's code of conduct within three months of the Regulations coming into effect.
It does not appear that the Shire has incorporated the model code within the requisite period of time, as such, pursuant to s 5.104(5) of the Act, the model code is taken to be the Shire's adopted code.
While there are elements of clauses 4.1, 4.6 and 4.7 of the Shire's code which are consistent with the model code, the wording of those clauses is not directly replicated in the model code; I have therefore not specifically taken into account clauses 4.1, 4.6 and 4.7 of the Shire's code in my determination, and will rely instead on the express provisions of the model code.
Tribunal jurisdiction
The councillor seeks a review under s 5.125 of the Act of the Panel's finding of a minor breach and the Panel's decision to make an order of sanction under s 5.110(6) of the Act.
Section 5.125 of the Act provides that a party may apply for a review of a decision of standards panel, which term 'decision' is defined as a decision to make an order under s 5.110(6) of the Act.
Under s 17 of the SAT Act, if a matter that an enabling Act gives the Tribunal jurisdiction to deal with is a matter that expressly or necessarily involves a review of a decision, the matter comes within the Tribunal's review jurisdiction.
Section 5.125 of the Act necessarily involves the review of both the decision on breach and the decision under s 5.110(6): Kunze and Local Government Standards Panel [2021] WASAT 159 at [72]- [73].
Finally, the purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review: s 27(2) of the SAT Act.
The review is not confined to matters that were before the Panel but may involve the consideration of new material whether or not it existed at the time the decision was made: s 27(1) of the SAT Act.
Nor is the review limited to the reasons for decision or grounds for review set out in the application: s 27(3) of the SAT Act.
Secondary Issue 1 - Whether the councillor committed a minor breach
(a) Clause 18 of the model code - improper use of office
I have difficulty in finding that there has been any use by the councillor of her office as councillor, even where she has signed her letter as 'Cr Karen Morrissey'.
She was not exercising any function as a councillor in writing a letter objecting to action that had been taken by the Shire, and did not requested any action be taken by the CEO.
Further, I accept her factual contentions, as contained in her statement of issues, facts and contentions, that she only provided the letter to the acting CEO and agreed to further dissemination to other members of the council but not to the letter being included in the agenda to the council meeting.
While her factual assertions are not contained in any sworn testimony or witness statement, I am content to rely on her assertions given that they are consistent with her earlier submissions to the Panel, and do not appear contrary to any other evidence from any other party or witness.
As such, I do not interpret her actions as giving rise to a request to put any action to the council for deliberations, which further challenges the notion that she had exercised any function as a councillor in writing and providing the letter to the acting CEO.
In any event, it is clear from the provisions of the Act that the decisionmaking functions of the council can only be exercised by some form of majority of the council, and a sole councillor does not have independent decision-making power.
Indeed, by the councillor's reference to actions already taken by the Shire, it is apparent that the council had already made decisions to which the acting CEO is required to give effect, and so her only course of action is to record her dissenting views on those actions.
Finally, the councillor does not purport to speak on behalf of any other resident in the district as the letter is issued in her name, and can be taken to represent her personal views on the matters of objection.
As such, I am not satisfied that the councillor had made use of her office as councillor by writing and providing the letter to the acting CEO (and later agreeing to his dissemination to other members of the council).
Additionally, I accept the intervenor's submissions that it is questionable that the councillor had used her office to cause detriment to the State government and/or the Shire.
'Detriment' has been found, in the construction of a near-identical rule of conduct in its predecessor emanation (that is, the repealed Local Government (Rules of Conduct) Regulations 2007 (WA)), to carry its ordinary meaning of 'loss or damage done or caused to, or sustained by, any person or thing': Treby at [94] and [103].
'Loss', in turn, is accepted as meaning 'the diminution of one's possessions or advantages; detriment or disadvantage involved in being deprived of something, or resulting from a change in conditions', while 'damage', in turn, means 'loss or detriment to one's property, reputation etc' and 'harm done to a thing or person': Treby at [95].
A contravention of this rule of conduct does not depend on actual detriment being suffered by a person, as long as it can be established that a councillor believed that the intended result of his or her conduct would be that the other person would suffer detriment: Treby at [96].
In this case, I agree with the intervenor that the most likely type of detriment that could be caused by the letter is damage to the reputation of the State government and/or the Shire.
Given that her intended audience of the letter was the acting CEO and the Shire President (and was later expanded to the other members of the council), I would need to be satisfied that the reputation of the State government and/or the Shire has been damaged by the letter, or that the councillor intended that damage to occur as a result of the letter.
As the Shire President and the other members of the council represent the council, as the governing body of the Shire, no damage to the Shire's reputation can occur if dissemination had been limited to the council; it is a more open question as to whether the State government's reputation, in the eyes of the council, could have been damaged by the comments made in the letter.
No evidence has been adduced about the views of the other members of the council of the State government's reputation as a result of the letter, nor as to whether the councillor intended to cause damage to the State government's reputation in the eyes of the other members of the council.
It is not ultimately necessary for me to express a concluded view on this issue, as I have already determined that the councillor did not make use of her office as council member.
(b) Clause 19 of the model code - contributing to administration
As stated in [78], the letter does not request the CEO to undertake any task, nor does it purport to undertake any other task that contributes to the administration of the local government.
The Panel also accepts that the councillor did not give any direction to any member of the Shire to undertake any action in finding that the councillor has not breached cl 19 of the model code.
As such, I agree with the Panel's determination in declining to find a minor breach under this ground of complaint.
(c) Clause 22 of the model code - disclosure of interest
I agree with the Panel's determination in declining to find a minor breach under this ground of complaint on the basis that this rule of conduct is not applicable where the councillor did not attend the meeting.
(d) Regulation 34D of the Administration Regulations
Similarly to clause 22 of the model code, I agree with the Panel's determination, in declining to find a minor breach under this ground of complaint, that the Shire's standing orders do not apply to this case where the councillor did not attend the meeting.
Secondary issue 2 - Appropriate sanction
As I have found that the councillor has not contravened any rule of conduct or relevant local law, I am satisfied that she has not committed a minor breach within the meaning of s 5.105 of the Act, and there is no basis for making an order of sanction under s 5.110(6) of the Act.
Conclusion
On balance, for reasons set out above, I find that the correct and preferable decision is that the councillor has not committed a minor breach within the meaning of s 5.105 of the Act.
I will allow the application and set aside the Panel's decisions delivered on 27 June 2022 and 4 October 2022.
Orders
The Tribunal makes the following orders:
1.The application for review of the Respondent's decisions delivered on 27 June 2022 (finding of minor breach) and 4 October 2022 (order of sanction) is allowed.
2.The decisions of the Respondent delivered on 27 June 2022 (finding of minor breach) and 4 October 2022 (order of sanction) are set aside.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS K Y Loh, MEMBER
21 JULY 2023
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