MORRISSEY and LOCAL GOVERNMENT STANDARDS PANEL - [2023] WASAT 67

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Local Government (Rules of Conduct) Regulations 2007 (WA) (repealed)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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2023] WASAT 67
Decision Date: 21 JULY 2023

CaseChat Overview and Summary

The matter before the court involved a dispute between Morrisey and the Local Government Standards Panel regarding the conduct of a council member. The councillor had written a letter expressing objections to the Shire's actions concerning COVID-19 vaccination clinics and the use of the Shire's publication to advertise these clinics. The Panel found that the councillor had breached the model code of conduct, specifically under clause 18 of Schedule 1 to the Regulations, but not under clauses 19 or 22 of Schedule 1 to the Regulations or regulation 34D of the Local Government (Administration) Regulations 1996 (WA).

The primary legal issue the court had to decide was whether the model code of conduct had been adopted by the Shire. If so, the court needed to determine whether the councillor had used her office as a council member for the purposes of gaining some advantage or causing detriment to another person. Secondary issues included whether the councillor contravened specific clauses of the Regulations and, if so, what the appropriate sanction should be under the Act.

The court examined the evidence and found that the model code of conduct had indeed been adopted by the Shire. The court then considered whether the councillor had used her office for the purposes mentioned above. The court found that the councillor had breached the code by using her position to object to the Shire's actions publicly, which amounted to using her office for personal advantage. The court also found that the councillor did not contravene clauses 19 or 22 of Schedule 1 to the Regulations or regulation 34D of the Administration Regulations.

In light of the findings, the court determined that the appropriate sanction under the Act would be to reprimand the councillor. The court's decision focused on the importance of maintaining public trust in local government and the need for council members to adhere to the model code of conduct. The court issued an order reprimanding the councillor for her breach of the model code of conduct and directed that the reprimand be recorded in the Panel's records.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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? 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.