MUMMERY and LOCAL GOVERNMENT STANDARDS PANEL
[2020] WASAT 158
•18 DECEMBER 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION: MUMMERY and LOCAL GOVERNMENT STANDARDS PANEL [2020] WASAT 158
MEMBER: MS C BARTON, MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 18 DECEMBER 2020
FILE NO/S: CC 460 of 2020
BETWEEN: MALCOLM MUMMERY
Applicant
AND
LOCAL GOVERNMENT STANDARDS PANEL
Respondent
ATTORNEYGENERAL OF WESTERN AUSTRALIA
Intervener
Catchwords:
Local government - Rules of conduct - Minor breach - Request for draft council documents - Meaning of threat - Whether conduct amounted to a threat - Whether intention to influence local government employee - Appropriate sanction for minor breach - No sanction imposed - Turns on own facts
Legislation:
Criminal Code (WA), s 123, s 123(1)
Interpretation Act 1984 (WA), s 18, s 19, s 19*2)
Local Government (Rules of Conduct) Regulations 2007 (WA), reg 3, reg 10, reg 10(1)(b), Pt 2
Local Government Act 1995 (WA), s 5.92, s 5.104(1), s 5.105, s 5.105(1)(a), s 5.106, s 5.110, s 5.110(1)(b), s 5.110(6)(b)(iii), s 5.125, s 5.125(1)
State Administrative Tribunal Act 2004 (WA), s 24, s 60(2)
Result:
Decision of the Local Government Standards Panel varied as to penalty but otherwise affirmed
Category: B
Representation:
Counsel:
| Applicant | : | N/A |
| Respondent | : | N/A |
| Intervener | : | N/A |
Solicitors:
| Applicant | : | In Person |
| Respondent | : | State Solicitor's Office |
| Intervener | : | State Solicitor's Office |
Case(s) referred to in decision(s):
City of Fremantle v Imago Holdings Pty Ltd [2020] WASCA 61
Director of Public Prosecutions v ACME Storage Pty Ltd [2017] VSCA 90
Divine v The State Of Western Australia [2019] WASCA 49
Mohammadi v Bethune [2018] WASCA 98
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Smith v The State of Western Australia [2014] HCA 3; (2014) 250 CLR 473
Treby v Local Government Standards Panel [2010] WASAT 81; (2010) SR (WA) 66
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
In February 2019, Mr Malcolm Mummery (applicant) was a member of the Council of the City of Subiaco (City) when he requested that the Chief Executive Officer (CEO) make certain documents available to him relating to the preparation of the City's Corporate Carbon Reduction Plan (Draft plan). The CEO refused the applicant access to the Draft plan on the basis that it was in draft form.
Following a series of emails between the applicant and the CEO, the CEO made a complaint to the Local Government Standards Panel (respondent) alleging that the applicant had contravened reg 10 of the Local Government (Rules of Conduct) Regulations 2007 (WA) (Regulations) (Complaint).
On 5 June 2019, the respondent concluded that the applicant had breached reg 10(1)(b) of the Regulations on the basis that the applicant had made threatening comments to the CEO in his email correspondence to her (breach decision). On 23 August 2019, the respondent determined that the appropriate penalty for the breach was to order the applicant to undertake training (sanction decision). However, the respondent subsequently suspended the Complaint because the applicant had ceased to be a council member.
On 7 April 2020, the applicant commenced proceedings in the Tribunal under s 5.125(1) of the Local Government Act 1995 (WA) (LG Act) seeking a review of the breach and sanction decisions. The applicant seeks orders from the Tribunal setting aside the respondent's decisions and dismissing the Complaint. For the reasons set out in this decision, the Tribunal will affirm the breach decision, set aside the sanction decision and decline to impose a penalty on the applicant.
The respondent does not play an active role in review proceedings under the LG Act and has confined its participation to placing relevant documents before the Tribunal under s 24 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The reasons for the respondent's limited role in review proceedings was explained by Pritchard J in Treby v Local Government Standards Panel [2010] WASAT 81; (2010) SR (WA) 66 at [16]. In view of the respondent's limited participation, the Tribunal was assisted by the intervention of the AttorneyGeneral of Western Australia (Intervener) who acted as a contradictor in the proceedings.
Issues for determination
In determining whether the applicant's conduct in requesting the Draft plan from the CEO was contrary to reg 10(1)(b) of the Regulations, the Tribunal considered the proper construction of the statutory provision and dealt with the following issues:
1)What constitutes a threat for the purposes of reg 10(1)(b) of the Regulations?
2)Did the applicant's conduct amount to a threat?; and
3)Was there an intention by the applicant to influence the conduct of a local government employee?
Both the applicant and Intervener filed with the Tribunal and gave to each party a statement of issues, facts and contentions. On 3 June 2020, the respondent filed a bundle of documents under s 24 of the SAT Act. On 27 July 2020, the applicant and Intervener filed a statement of agreed facts and an agreed bundle of documents. The applicant and Intervener also filed written submissions and decided cases on which each party relied, with the applicant filing a reply to the Intervener's submissions on 26 August 2020. The matter was determined entirely on the documents pursuant to s 60(2) of the SAT Act.
Chronology of events
The parties do not contest that the following events are relevant to the determination of the proceedings.
The applicant was elected a councillor of the City of Subiaco in October 2015.
By 16 February 2019, the City was in possession of the Draft plan prepared for the City by Josh Byrne & Associates.
Between 16 February 2019 and 21 February 2019, there were a number of emails exchanged between the applicant and the CEO, Ms Rochelle Lavery and the City's A/Director of Technical Services, Mr Gary Stead, regarding the Draft plan (Emails).
The email which is the focus of these proceedings is as follows (email 7):
I've been through the time-consuming process asking for documents and getting the bureaucratic run around that is presumably in the hope that I'll give up.
How about if we make an example of this one and I take action through the SAT seeking to require you to provide me the document because it's related to my job as a councillor and the Act provides for me to have that access.
Now I appreciate that I may not get a directions hearing quickly and making a public fuss might get quicker results. However, if you were to agree to accept a SAT ruling as a sound basis for modifying the way EM's requests for documents (that don't require significant staff workload) such that the default becomes the pragmatic and efficient approach of skip the time wasting and just provide documents?
Do we have a deal?
On 10 April 2019, the CEO made a Complaint to the respondent, alleging that the applicant had contravened reg 10 of the Regulations.
On 2 May 2019, the applicant took up the respondent's invitation to comment on the Complaint, accepting the information detailed therein but not accepting that he had contravened reg 10 of the Regulations.
On 5 June 2019, the respondent found that by the content of the Emails the applicant had breached reg 10(1)(b) of the Regulations (its breach decision).
On 29 June 2019, the respondent published reasons for its breach decision, finding that the applicant had breached reg 10(1)(b) of the Regulations (and, therefore, committed a minor breach of the LG Act) and invited the applicant to make submission with respect to the appropriate penalty.
On 9 July 2019, the applicant made submissions with respect to the appropriate penalty.
On 23 August 2019, the respondent convened to consider an appropriate penalty (its sanction decision) and determined that the breach of reg 10(1)(b) was to be dealt with by ordering the applicant to undertake training pursuant to s 5.110(6)(b)(iii) of the LG Act.
On 19 October 2019, the applicant ceased to hold office as a councillor of the City.
On 29 October 2019, the respondent finalised its reasons for the sanction decision, and a document setting out the terms of the order under s 5.110(6)(b)(iii) of the LG Act.
By letter dated 12 November 2019, the respondent advised the applicant that because he had ceased to be a councillor of the City, the respondent had suspended the Complaint but that in accordance with the LG Act, the respondent may resume dealing with any minor breach complaint that has been lodged against the applicant should he be elected to a council in the future.
By email dated 9 March 2020, the applicant queried the validity of the respondent's decision to suspend the Complaint.
By email dated 11 March 2020, the respondent notified the applicant that the sanction decision had been made but not published on the basis that by 29 October 2019, the applicant was no longer a councillor of the City.
On 18 March 2020, the City endorsed the Draft plan (Plan). At page 28, the Plan references a report of Josh Byrne & Associates entitled, 'City of Subiaco Corporate Carbon Reduction Plan – Public Report Content'.
On 7 April 2020, the applicant applied to the Tribunal for a review of the breach decision and the sanction decision under s 5.125 of the LG Act.
On 12 May 2020, the respondent published its sanction decision orders and reasons and notified the applicant that the written decision should have been published notwithstanding the applicant was no longer a council member.
The statutory framework
Part 2 of the Regulations establish the rules of conduct for council members for the purposes of s 5.104(1) of the LG Act. A breach of the rules of conduct constitutes a minor breach of the LG Act: s 5.105 of the LG 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 it did not occur: s 5.106 of the LG Act.
In its breach decision, the respondent concluded that the applicant had, by the Emails, breached reg 10(1)(b) of the Regulations. Regulation 10(1)(b) of the Regulations provides that a councillor must not attempt to influence, by means of a threat or the promise of a reward, the conduct of a person who is a local government employee. Regulation 10 of the Regulations provides:
10.Relations with local government employees
(1)A person who is a council member must not
(a)direct or attempt to direct a person who is a local government employee to do or not to do anything in the person's capacity as a local government employee; or
(b)attempt to influence, by means of a threat or the promise of a reward, the conduct of a person who is a local government employee in the person's capacity as a local government employee.
(2)Subregulation (1) does not apply to anything that a council member does as part of the deliberations at a council or committee meeting.
(3)If a person, in his or her capacity as a council member, is attending a council meeting, committee meeting or other organised event and members of the public are present, the person must not, either orally, in writing or by any other means
(a)make a statement that a local government employee is incompetent or dishonest; or
(b)use offensive or objectionable expressions in reference to a local government employee.
(4)Subregulation (3)(a) does not apply to conduct that is unlawful under The Criminal Code Chapter XXXV.
The respondent determined that the applicant should undertake a training course under s 5.110(6)(b)(iii) of the LG Act as the appropriate sanction for the applicant's breach of reg 10(1)(b) of the Regulations. Section 5.110 of the LG Act provides:
5.110.Dealing with complaint of minor breach
(1)The member of the primary standards panel who receives a complaint from a complaints officer under section 5.107(3)(c), 5.108(2)(c) or 5.109(1)(c) is to
(a)allocate that complaint to a standards panel; and
(b)send the complaint and anything received from the complaints officer to the member of that standards panel who is appointed under Schedule 5.1 clause 2(a).
(2)After receiving a complaint allocated to it under subsection (1), a standards panel is required to
(a)make a finding as to whether the breach alleged in the complaint occurred; or
(b)send the complaint to the Departmental CEO under section 5.111.
(3A)However, a standards panel can at any stage of its proceedings refuse to deal with a complaint if the standards panel is satisfied that the complaint is frivolous, trivial, vexatious, misconceived or without substance.
(3B)A standards panel may
(a)request the parties to participate in mediation to resolve behavioural matters related to the complaint; and
(b)if the parties agree to the request, defer the making of a finding under subsection (2) pending the outcome of the mediation.
(3)For the purpose of helping it to deal with a complaint, a standards panel may request the complaints officer to provide anything further that the standards panel requires, and the complaints officer is required to comply with the request so far as it is practicable to do so.
(4)A standards panel must give each party written notice of the reasons for
(a)any finding it makes under subsection (2); or
(b)any refusal under subsection (3A) to deal with a complaint.
(5)If a standards panel finds that a council member has committed a minor breach, the standards panel is required to give the council member an opportunity to make submissions about how the breach should be dealt with under subsection (6).
(5A)When determining how the breach should be dealt with under subsection (6), the standards panel may take into account
(a)the outcome of mediation requested under subsection (3B); or
(b)a refusal by the council member to participate in mediation requested under subsection (3B).
(6)The breach is to be dealt with by
(a)ordering that no sanction be imposed; or
(b)ordering that
(i)the person against whom the complaint was made be publicly censured as specified in the order; or
(ii)the person against whom the complaint was made apologise publicly as specified in the order; or
(iii)the person against whom the complaint was made undertake training as specified in the order; or
(iv)the person against whom the complaint was made pay to the local government specified in the order an amount equal to the amount of remuneration and allowances payable by the local government in relation to the complaint under Schedule 5.1 clause 9;
or
(c)ordering 2 or more of the sanctions described in paragraph (b).
(7)A standards panel is required to give to each party and the complaints officer notice of how it deals with the matter under subsection (6).
(8)Regulations may provide for or regulate matters relating to mediation under this section including
(a)the appointment of mediators; and
(b)the procedures to be followed when mediation is undertaken; and
(c)the time allowed for mediation; and
(d)payment and recovery of the costs of mediation.
The applicant sought review of the respondent's decision under s 5.125 of the LG Act which provides:
5.125.Review of certain decisions
(1)A party may apply to the State Administrative Tribunal for a review of a decision of a standards panel.
(2)In subsection (1)
decision means a decision to make an order under section 5.110(6).
Principles of statutory construction
The starting point in relation to statutory construction is consideration of the text of the provision, in its statutory context, including the statute's purpose or object. The provision must be construed to that it is consistent with the language and purpose of all the provisions of the statute: Mohammadi v Bethune [2018] WASCA 98 at [32] (Mohammadi); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69].
In City of Fremantle v Imago Holdings Pty Ltd [2020] WASCA 61 at [66], the Western Australian Court of Appeal referred to the following passage from Mohammadi:
...
…
The objective discernment of the statutory purpose is integral to contextual construction. The statutory purpose may be discerned from an express statement of purpose in the statute, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose must be discerned from what the legislation says, as distinct from any assumptions about the desired or desirable reach or operation of the provisions.
Section 18 of the Interpretation Act 1984 (WA) (Interpretation Act) provides the following guidance:
In the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object.
Extrinsic material may be used to confirm the ordinary meaning conveyed by the text of the statutory provision taking into account its context in the statute and the purpose or object underlying the statute: s 19(1)(a) of the Interpretation Act. Material that the Tribunal may have regard to includes relevant parliamentary debates, second reading speeches and explanatory memoranda: s 19(2) of the Interpretation Act.
The Tribunal's consideration
A number of general principles to guide the behaviour of council members are listed in reg 3 of the Regulations. The general principles require a council member to act with honesty and integrity, avoid damage to the reputation of the local council, and treat others with respect and fairness. The Tribunal finds that the statutory purpose of the Regulations, in the context of the general principles and the text of the Regulations, is to deter conduct by council members that may interfere with the effective functioning of their local government by the establishment of rules under the Regulations which, if breached, will lead to a penalty or sanction.
Relevantly, reg 10(1)(b) of the Regulations provides that a person who is a council member must not attempt to influence, by means of a threat or the promise of a reward, the conduct of a person who is a local government employee in the person's capacity as a local government employee. It is not in dispute that the applicant was a council member of the City at all material times, that he sent the Emails and that the recipients of the Emails were local government employees. There is also no dispute that the Draft plan was available to the CEO because of her position as a local government employee.
The applicant denies that he has breached reg 10(1)(b) of the Regulations and contends that his entitlement to seek access to the Draft plan is relevant context. The applicant contends that there was nothing improper about his request for the Draft plan because it is expressly authorised by s 5.92 of the LG Act and there was no basis for the CEO to withhold the information sought. The applicant further contends that the question is not whether the conduct was intended to influence but whether a threat was made in an attempt to influence. It is the applicant's position that no threat was made.
The Intervener contends that in construing reg 10(1)(b) of the Regulations, guidance may be drawn from the manner in which s 123 of the Criminal Code (WA) (Criminal Code) has been interpreted by the Courts. Section 123 of the Criminal Code relates to the conduct of jurors in judicial proceedings and provides as follows:
Any person who –
(1)Attempts by threats or intimidation of any kind, or by benefits or promises of benefit of any kind, or by benefits or promises of benefit of any kind, or by other corrupt means, to influence any person, whether a particular person or not, in his conduct as a juror in any judicial proceeding, whether he has been sworn as a juror or not; or
…
is guilty of a crime, and is liable to imprisonment for 5 years.
(Tribunal emphasis in bold)
The Intervener referred the Tribunal to the Western Australian Court of Appeal decision in Divine v The State Of Western Australia [2019] WASCA 49 (Devine) which considered the meaning of s 123 of the Criminal Code. In Devine at [44], the Court of Appeal held that the offence of attempting by threat or intimidation of any kind to influence any person in his conduct as a juror, contrary to s 123(1) of the Criminal Code, has two elements as follows:
a)there was conduct amounting to threats or intimidation of any kind; and
b)by engaging in that conduct, the alleged offender attempted to influence a person in his or her conduct as a juror.
The first element is evaluated objectively while the second element has a subjective component in that the person alleged to have committed the offence intended to influence a person in his or her conduct as a juror: Devine at [44] [46].
The Intervener observes that both s 123 of the Criminal Code and reg 10(1)(b) of the Regulations are generally concerned with the maintenance of integrity and confidence in public institutions and both apply to attempts by one person to influence another via threats and inducement. On this basis, the Intervener contends that s 123 of the Criminal Code can be relied upon to assist in the interpretation of reg 10(1)(b) of the Regulations. If the two elements of Devine are applied in this case, the Intervener contends that a breach of reg 10(1)(b) of the Regulations will be established if:
(a)the council member engaged in conduct amounting to a threat or the promise of a reward (first limb); and
(b)by engaging in that conduct, the council member subjectively intended to influence the conduct of a local government employee in relation to something within their capacity as a local government employee (second limb).
There is no suggestion that the applicant intended to offer any reward to the CEO for the release the Draft plan.
Did the applicant's conduct amount to a threat?
In order to establish that there has been a breach of reg 10(1)(b) of the Regulations, the Tribunal must be satisfied that the applicant engaged in conduct that amounts to a 'threat' for the purposes of the first limb. The statutory text and purpose of the Regulations is relevant to the interpretation of reg 10(1)(b) of the Regulations.
The term 'threat' is not defined in the LG Act or Regulations. It is defined in the Macquarie Dictionary Online (2020) as, relevantly:
1.a declaration of an intention or determination to inflict punishment, pain or loss on someone in retaliation for, or conditionally upon, some action or course; menace[.]
The Intervener observes that, consistently with Devine, courts have applied the ordinary and natural meaning of the term 'threat' in statutory offences which require proof of a threat. The Tribunal finds no reason to depart from that approach.
Whether conduct might amount to a threat is a question of fact to be evaluated objectively. It is not necessary to consider the recipient's emotional response to what occurred: Devine at [46]. The threatened detriment need not be directed at the recipient of a threat and it is immaterial whether the person issuing a threat intends to carry it out: Director of Public Prosecutions v ACME Storage Pty Ltd [2017] VSCA 90 at [41] and [43].
The Intervener contends that it was the applicant's stated intention, in sending the Emails, to cause a detriment or loss to the CEO or the City, which was contingent on how the CEO responded to the applicant's request for the Draft plan. The Intervener points to the following references to detriment or loss in the Emails:
a)the reference in email 7 to commencement of legal proceedings to 'make an example of this one'; and
b)the reference in email 7 to the possibility of making a 'public fuss' to 'get quicker results'.
The Intervener further contends that the words '[d]o we have a deal?' in email 7 supports a finding that the above course of action was contingent on the response from the CEO to the applicant's request for the Draft plan.
In contrast, the applicant contends that the Intervener has not identified a threat uttered by the applicant in email 7 (or elsewhere) but has instead selected words out of context in an attempt to manufacture a threat (where there was none). It is the applicant's position that the Intervener has not identified or brought any evidence to establish the 'detriment or loss' that the CEO or the City would have suffered if a proceeding was brought to determine whether or not the applicant had a right to the Draft plan. The applicant contends that there was no declaration of an intention to inflict loss or consequence on anyone were the applicant to succeed in obtaining a ruling that the Draft plan ought to be provided. That is, the words '[d]o we have a deal', relate to the propositions put in email 7 to the effect that the applicant seek a Tribunal ruling and the outcome of the ruling should guide future decisions.
In response to email 7, the CEO set out her understanding of the position in respect of the applicant's entitlement to documents under the LG Act as a council member (email 8). The CEO commenced email 8 as follows:
In regard to your advice that you may 'take action through the SAT seeking to require [me] to provide [you] the document', the State Administrative Tribunal has no jurisdiction in relation to a complaint other action that a Council member may wish to take against a CEO.
Although the CEO acknowledged in her response to the applicant that there was no legal recourse to the Tribunal, applying an objective test, it is not relevant to the Tribunal's determination whether the CEO felt threatened by the proposed legal action or knew that legal action against her was possible or not.
The Tribunal accepts the use of the words 'public fuss' should not be taken out of context and that the sentences in email 7, 'I may not get a directions hearing quickly and making a public fuss might get quicker results', and '[d]o we have a deal?' is a reference to the applicant taking legal action in the Tribunal. However, the Tribunal finds that the language use by the applicant went further than merely notifying the CEO of an intention to seek a remedy before the Tribunal. The Tribunal finds that the language used by the applicant that he would make a 'public fuss' to 'get quicker results' does amount to a threat within the ordinary meaning of that word because it conveys a potential detriment to the CEO contingent on whether the CEO gave the applicant the Draft plan.
Accordingly, the Tribunal finds that the applicant's conduct did amount to a threat for the purposes of reg 10(1)(b) of the Regulations.
Did the applicant intend to influence the conduct of the CEO?
The Western Australian Court of Appeal found in Devine at [44] that a subjective test must be applied in determining whether a person intends to influence another.
The applicant accepts that the purpose of the Emails to the CEO was to obtain a copy of the Draft plan but disputes that his conduct amounts to a threat. The Tribunal finds that the applicant did intend to influence the conduct of the CEO under the second limb of the test in reg 10(1)(b) of the Regulations. The purpose of the Emails, as acknowledged by the applicant, was to facilitate the release by the CEO of the Draft plan.
The applicant contends that the Tribunal 'should be careful not to jump to the conclusion that the line has been crossed between robust debate and unlawful coercion' as referred to by the High Court in Smith v The State of Western Australia [2014] HCA 3; (2014) 250 CLR 473 at [50]. The Tribunal observes that this caution was raised in the context of whether the unlawful intimidation of a juror could lead to a miscarriage of justice. The Western Australian Court of Appeal acknowledged in Devine at [49] that, in the context of jury deliberations:
… it cannot be expected that discussion will always be conducted in a polite and civil manner. From time to time, feelings of frustration, or of experiencing significant interpersonal pressure may be expected. Jurors may be rude or even offensive, as occurs from time to time in many spheres of live. None of these means any criminal offence has been committed[.]
The Tribunal does not accept the applicant's contention in respect of the test to be applied by the Tribunal in determining if a breach of reg 10(1)(b) of the Regulations has occurred. The Tribunal observes that jurors are not subject to the same statutory rules of conduct as council members who are acting in an official capacity and, consequently, the 'line' between robust debate and unlawful conduct may be shorter for council members and, therefore, crossed sooner. Pursuant to s 5.106 of the LG Act, the Tribunal must be satisfied on the evidence before it that it is more likely that the breach occurred than it did not occur.
Based on the documents and submissions filed by the parties, the Tribunal is satisfied that it is more likely than not that the applicant contravened reg 10(1)(b) of the Regulations and, therefore, has committed a minor breach for the purposes of s 5.105(1)(a) of the LG Act. Accordingly, the Tribunal will affirm the decision of the respondent made on 29 June 2019.
Decision in respect of penalty
On 29 October 2019, the respondent made a decision under s 5.110(6)(b)(iii) of the LG Act imposing a sanction on the applicant to undertake a training course for elected members provided by the Western Australian Local Government Association. The Tribunal finds that the applicant ceased as a council member on 19 October 2019. For this reason, the Tribunal finds that there is no utility in imposing a sanction on the applicant to undertake training.
There are a number of potential sanctions open to the Tribunal under s 5.110(6) of the LG Act, including an order that the applicant publicly apologise to the CEO. The CEO resigned from the City on or around 13 August 2020. For this reason, the applicant contends that a public apology would serve no utility.
As the CEO is no longer employed with the City and the applicant has ceased as a council member, the Tribunal finds that an order requiring the applicant to publicly apologise to the CEO would serve little utility. Therefore, in the circumstances of this case, the Tribunal will set aside the decision of the respondent made on 29 October 2019 in respect of the sanction imposed on the applicant and, pursuant to s 5.110(6)(a) of the LG Act, will decline to impose a sanction.
Orders
The Tribunal orders:
1.The decision of the Local Government Standards Panel made on 29 June 2019, that the applicant committed a minor breach of the Local Government Act 1995 (WA) by contravening reg 10(1)(b) of the Local Government (Rules of Conduct) Regulations 2007 (WA), is affirmed.
2.The order of the Local Government Standards Panel made on 29 October 2019 under s 5.110(6)(b)(iii) of the Local Government Act 1995 (WA), in relation to the sanction to be imposed on the applicant for the minor breach, is set aside.
3.Pursuant to s 5.110(6)(a) of the Local Government Act 1995 (WA), the Tribunal will decline to make an order imposing a sanction in respect of the minor breach by the applicant.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS C BARTON, MEMBER
18 DECEMBER 2020
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