OSBORNE (AS CEO OF THE CITY OF BUNBURY) and STECK
[2019] WASAT 72
•16 SEPTEMBER 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION: OSBORNE (AS CEO OF THE CITY OF BUNBURY) and STECK [2019] WASAT 72
MEMBER: MS D QUINLAN, MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 16 SEPTEMBER 2019
FILE NO/S: CC 392 of 2019
BETWEEN: MALCOLM OSBORNE (AS CEO OF THE CITY OF BUNBURY)
Applicant
AND
MICHELLE TRACEY STECK
Respondent
Catchwords:
Local government - Minor breach for inappropriate letter to newspaper criticising council decision - Orders of Local Government Standards Panel to provide public apology - Failure to comply with Panel's orders - Apparent belated public apology
Legislation:
Local Government (Rules of Conduct) Regulations 2007 (WA), reg 7(1)(b)
Local Government Act 1995 (WA), s 110(6)(ii), s 5.117, s 5.117(iv), s 5.117(v), s 5.117(2), s 5.118, s 5.118(1), s 5.119
State Administrative Tribunal Act 2004 (WA), s 9, s 60(2)
Result:
Two month suspension suspended for 12 months on condition of no further breach in that time
Category: B
Representation:
Counsel:
| Applicant | : |
| Respondent | : |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Natural Floor Covering Centre Pty Ltd v Monamy (No 1) [2006] FCA 518
Sheridan (as CEO of the Shire of Chittering) and Gibson [2019] WASAT 12
Shire of Halls Creek and Taylor [2017] WASAT 161
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These proceedings arise in the Tribunal pursuant to an application made on 13 March 2019 by the Chief Executive Officer (CEO) of the City of Bunbury (City) under s 5.118(1) of the Local Government Act 1995 (WA) (LG Act).
The Tribunal currently has the applicant listed as the City. In order to accord with s 5.118 of the LG Act, the Tribunal will amend the name of the applicant to Malcolm Osborne (as CEO of the City of Bunbury).
The application alleges that Ms Michelle Steck (respondent or Cr Steck) a local government councillor of the City, has failed to comply with orders made by the Local Government Standards Panel (the Panel) on 21 October 2018 (the Panel's orders).
The documents which are before the Tribunal are as follows:
a)application under s 5.118(1) of the LG Act received on 13 March 2019 attaching:
i)letter dated 13 March 2019 from Mr Osborne;
ii)letter dated 22 October 2018 to the City's CEO from Manager Strategic Coordination, Department of Local Government, Sport and Cultural Industries;
iii)Panel's Sanction Decision and Reasons for Decision published 21 October 2018;
iv)Panel's Order for Public Apology published 21 October 2018; and
v)emails from the City's CEO to Cr Steck on 18 December 2018 and 7 January 2019.
b)emails between Cr Steck and the Tribunal on 1, 15 and 17 April 2019.
c)CEO's statement of issues, facts and contentions dated 24 June 2019.
d)Cr Steck's statement of issues, facts and contentions dated 26 August 2019.
Background facts
Following a decision of the Council of the City in January 2018 to appoint a representative of the Bunbury Geographe Chamber of Commerce and Industry (BGCCI) to the Council's Policy Review and Development Committee, Cr Steck wrote a letter to the editor of the local newspaper, the South Western Times, in which she criticised that decision. The letter was published on 1 February 2018.
On 15 February 2018, the Mayor of the Council, Mr Gary Brennan, made a complaint against Cr Steck alleging a minor breach of the LG Act in that it was alleged that Cr Steck contravened a provision of the Local Government (Rules of Conduct) Regulations 2007 (WA) (LG Regulations).
On 13 July 2018, the Panel published its findings and reasons for finding that Cr Steck had breached reg 7(1)(b) of the LG Regulations, which constitutes a minor breach under the LG Act.
After reviewing the available evidence, the Panel found as follows:
…
37.Applying the tests for improper use of office as outlined in paragraphs 29 to 34 above the Panel is satisfied to the required standard that Cr Steck made improper use of her office when making the following statements in the first and eighth paragraphs of the Letter (the Statements), considered in the context of the Letter as a whole:
'As a Bunbury Councillor for over 12 years, I have major concerns about the recent decision of the council to appoint 'hand-picked' representation such as the (BGCCI) to the Policy Review and Development Committee [.]
…
Fobbingoff and blatantly watering down the role and responsibilities of an elected member should be concerning for all'.
38.The Panel forms this view because:
(a)It is more likely than not that a reasonable reader of the Statements, in the context of the Letter as a whole, would form the view that Cr Steck was, in her capacity as a Councillor, criticising a recent Council decision to appoint a member of the BGCCI to the Committee.
(b)Councillors have a duty to be faithful to Council decisions. There is nothing to indicate that Council made the decision to appoint a BGCCI representative to the Committee without authority or due process.
(c)It is more likely than not that Cr Steck had the opportunity to consider the relevant officer's report and to explain her opposition to these recommendations before Councillors voted. She has not submitted otherwise. Once Council made its decision she had a duty to respect and be faithful to it.
(d)Although a councillor may advise the public after a council meeting why they voted against a proposal they must be careful to word their comments in a way that indicates respect for the views of all other councillors and a commitment to their council's decision.
(e)It is more likely than not that other City Councillors would find the use of 'handpicked' and 'fobbingoff' offensive and disrespectful. Cr Steck's comments show disrespect for the views of the several Councillors who voted to accept recommendations 2 and 3.
(f)It is more likely than not that a reasonable reader of the letter would consider Cr Steck was accusing the Councillors who voted in favour of the recommendations of adding an inappropriate outsider to the Committee thereby devaluing the role of Councillors and limiting Councillors' responsibilities.
(g)The Code of Conduct warns Councillors who wish to speak publicly about the risk of damaging the City and the need to be positive, informative and appropriate. Cr Steck did not take sufficient care to ensure her comments met the standards espoused In the Code of Conduct.
(h)The Panel is satisfied to the required standard that any reasonable person who reads the Letter, knowing about Council's decision and the rules that govern the conduct of councillors, would come to the view that Cr Steck did not meet the standards for professionalism and respect for the Council decision, and for her fellow Councillors, that she is expected to uphold.
…
43.The Statements, when considered in the context of Council's decision and the other paragraphs in the Letter, say in effect that Council made a bad decision. Although it is not clear when she wrote to the Paper, 8 clear days elapsed between the OCM and the publication of the Letter. Cr Steck was not speaking impulsively; the Statements did not arise out of an interview; she initiated the communication and would have, or should have, taken time to reflect on her words.
44.In her Response Cr Steck does not resile from her Statements, even after time to reflect on the effect of regulation 7. She affirms her view that the Councillors who voted in favour of BGCCI representation on the Committee were wrong. She is more explicit about 'handpicked', saying the Mayor handpicked BGCCI to join the Committee. She says she was responding to community concerns about BGCCI. However, the proper action would have been to tell any concerned members of the community that, after consideration at the OCM and a close vote, the majority had made a decision which should be upheld unless Council chose at some point to reconsider the matter. Instead she set to blame the Mayor personally and other Councillors for making a wrong decision.
45.The only reasonable inference is that by sending the Letter Cr Steck wanted to tell the community that the Mayor and the other Councillors who voted in favour of the recommendations had made a damaging decision. She intended to cause members of the community to think less favourably of them for allowing BGCCI to join the Committee."
Cr Steck did not seek a review in this Tribunal of the decision of the Panel that she had committed a minor breach of the LG Act.
Cr Steck did not avail herself of the opportunity to provide any submissions to the Panel regarding the appropriate sanction to be imposed.
On 21 October 2018, after providing further reasoning as to the appropriate sanction, the Panel noted that Cr Steck had not apologised for her breach, did not resile from her statements in the newspaper, and instead affirmed them. The Panel found that further training would not be appropriate as Cr Steck had not accepted that she had done anything wrong. The Panel considered the sanction must send a message to Cr Steck and others that this type of conduct is unacceptable. The Panel concluded that a public apology was the appropriate sanction. The Panel made the following orders:
THE LOCAL GOVERNMENT STANDARDS PANEL ORDERS THAT:
1.Cr Steck, a Councillor for the City of Bunbury (City), apologise publicly to Mayor Gary Brennan ('Mayor Brennan'), and her fellow Councillors as specified in paragraph 2 below.
2.At the City's first ordinary council meeting Cr Steck attends after the expiration of 28 days from the date of service of this Order on her Cr Steck shall:
(a)ask the presiding person for his or her permission to address the meeting to make a public apology to Mayor Brennan and all other City councillors;
(b)make the apology immediately after Public Question Time or during the Announcements part of the meeting or at any other time when the meeting is open to the public, as the presiding person thinks fit;
(c)address the Council as follows, without saying any introductory words before the address, and without making any comments or statement after the address:
'I advise this meeting that:
1) A complaint was made to the Local Government Standards Panel, in which it was alleged that I contravened a provision of the Local Government (Rules of Conduct) Regulations 2007 on 1 February 2018 when I criticised a Council decision in a letter to the editor of the South Western Times published on that day.
(ii) The Panel found that behaving in this manner I made improper use of my office as Councillor with the intention of damaging Mayor Brennan and my fellow Councillors, thereby committing a breach of regulation 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007.
(iii) I accept that I should not have acted in such a manner and I apologise to Mayor Brennan and all my fellow Councillors for having done so.'
3.If Cr Steck fails or is unable to comply with the requirements of paragraph 2 above she shall cause the following notice of public apology to be published in no less than 10 point print, as a onecolumn or twocolumn display advertisement in the first 10 pages of the South Western Times newspaper.
PUBLIC APOLOGY BY COUNCILLOR MICHELLE STECK
A formal complaint was made to the Local Government Standards Panel alleging that I contravened a provision of the Local Government (Rules of Conduct) Regulations 2007 on 1 February 2018 in a letter to the editor of the South Western Times.
The Panel found:
(1) I breached the regulation 7(1)(b) of the Rules of Conduct Regulations when I made improper use of my office when I criticised a Council decision in a letter to the editor of the South Western Times which was published on 1 February 2018, with the intention of damaging Mayor Gary Brennan and my fellow Councillors.
(2) By behaving in this way to Mayor Brennan and my fellow Councillors, I failed to meet the standards of conduct expected of a councillor
I apologise to Mayor Brennan and all other Councillors for acting in such a manner.
Date of Order 21 October 2018
The Tribunal notes, in circumstances where the oral public apology is not made as required under order 2, that order 3 does not specify a timeframe.
The CEO received the Panel's determination and the Panel's orders dated 21 October 2018 and provided those to Cr Steck.
Cr Steck was in attendance however did not provide an oral apology on 27 November 2018, that being the City's first ordinary council meeting after the expiration of 28 days from the date of service of this Order on Cr Steck.
The CEO then contacted Cr Steck on a number of occasions, via email and by way of conversation, to ascertain her intentions regarding the placing of the newspaper apology. Cr Steck failed to respond in writing to the CEO's requests via emails on 18 December 2018 and 7 January 2019. Cr Steck advised the CEO in conversation that she did not intend to place the newspaper apology. The CEO then decided, due to a lack of formal response from Cr Steck, to refer the matter to the Tribunal.
On 13 March 2019 the CEO, as required pursuant to s 5.118(1) of the LG Act, commenced proceedings in the Tribunal referring Cr Steck's alleged failure to comply with the Panel's orders.
The first directions hearing in the Tribunal listed on 1 April 2019 did not proceed as Cr Steck's mobile phone appeared to be switched off (or possibly out of range of a signal).
On 15 April 2019, Cr Steck emailed the Tribunal as follows:
After revisiting the entire scenario, I have decided to proceed with an apology as requested by the LGSP within next week as the deadline has already passed for the booking within the paper.
So I wish to advise that I no longer wish to proceed with the SAT process.
Could you advise if this brings the matter to an end?
(Emphasis added)
On 17 April 2019 a case management officer at the Tribunal responded to Cr Steck's email informing Cr Steck that as she was not the applicant she could not withdraw from the matter and it must proceed.
On 1 May, 13 May and 10 June 2019 direction hearings were held in the Tribunal in order to progress the application. At the directions hearing on 10 June 2019 the Tribunal directed that the parties each provide a statement of facts, issues and contentions as well as a bundle of documents and that these proceedings would be determined entirely on the basis of the documents pursuant to s 60(2) of the StateAdministrative Tribunal Act 2004 (WA) (SAT Act). The Tribunal also made an order that Cr Steck may also provide a short statement of any evidence on which she wishes to rely.
On 24 June 2019 the CEO duly provided a short statement of issues, facts and contentions and noted that a bundle was not provided as the CEO relied upon the documents attached to the application. Cr Steck provided no documents to the Tribunal in compliance with the Tribunal's directions of 10 June 2019. On 25 July 2019 the Tribunal issued the following notation and direction orders:
The Tribunal notes:
1.The respondent has filed no documents by 8 July 2019 as per the orders dated 10 June 2019.
2.The Tribunal has left numerous phone messages and sent an email to follow up, however no reply has been received to any of those enquiries.
The Tribunal orders:
3.By 5 August 2019 the respondent may file with the Tribunal and provide to the other party any evidence on which she wishes to rely.
4.If nothing is received by 5 August 2019, then the matter will be determined on documents as per order 4 dated 10 June 2019 without any further referral to the respondent.
Cr Steck did not provide any evidence in accordance with the Tribunal's directions on 25 July 2019. However, on 27 August 2019, prior to the Tribunal finally determining these proceedings, Cr Steck provided a short statement of issues, facts and contentions dated 26 August 2019.
Legislative framework
The LG Act delineates minor and serious breaches of the LG Act.
The Panel found that the conduct of the respondent was a minor breach of the LG Act and penalised her under s 5.110(6)(ii) which deals with minor breaches of the LG Act.
Where a matter is referred to the Tribunal under s 5.118(1) of the LG Act for noncompliance with the Panel's orders, the Tribunal's enforcement powers under s 5.119 of the LG Act provide as follows:
(1)If, under section 5.118, the CEO of a local government or the Departmental CEO refers to the State Administrative Tribunal a failure of a person to comply with an order of a standards panel or the State Administrative Tribunal, the State Administrative Tribunal may, if satisfied that the person failed to comply with the order, make an order described in section 5.117(1)(a)(iv) or (v).
(2)Section 5.117(2) extends to an order made under subsection (1).
Section 5.117 relates to the Tribunal's powers to sanction a serious breach of the LG Act. Section 5.119 of the LG Act limits the Tribunal's sanction options for noncompliance with the Panel's orders under s 5.117(1)(iv) or (v) and s 5.117(2) of the LG Act which in effect means that the options for sanction are suspension, disqualification or a suspended order of suspension or disqualification on a specified condition.
Issue for determination
The issue for the Tribunal to determine in these proceedings is, if the Tribunal is satisfied that Cr Steck has failed to comply with the Panel's orders, in the exercise of the Tribunal's discretion under s 5.119 of the LG Act, what is the appropriate sanction (if any) in the circumstances.
CEO's submissions
The CEO submits that:
a)Cr Steck did not orally apologise at the next available ordinary council meeting of the City's councillors held on 27 November 2018 which was more than 28 days after the Panel's orders;
b)Despite requests or enquiries on numerous occasions (including written enquiries) from the CEO, Cr Steck did not comply with the Panel's orders to then apologise in the local newspaper;
c)No apology was forthcoming in any form prior to the Tribunal proceedings being brought; and
d)When the CEO was verbally told by Cr Steck that she would not be placing the published apology in the local newspaper, the CEO considered he had no choice but to advise the Tribunal that Cr Steck had failed to comply with the Panel's orders.
Cr Steck's submissions
The statement of issues, facts and contentions provided by Cr Steck contain three short points as follows:
1.I agree with the facts set out in each of the bullet points of the Applicant's Statement.
2.The reason for not having arranged to publish the apology in the newspaper as required by the Order of the Local Government Standards Panel, following the commencement of these proceedings, has been that my partner [name omitted] has suffered a series of serious health issues over the period midApril through to early August 2019.
3.I have now arranged for the apology as required by the Local Government Standards Panel's Order dated 19 September 2018 to be published in the South Western Times newspaper on 29 August 2019.
Consideration
In accordance with the Tribunal's objectives in s 9 of the SAT Act, the Tribunal has decided to consider in determining these proceedings the statement of issues, facts and contentions provided by Cr Steck well outside the further directions issued on 25 July 2019.
Did Cr Steck fail to comply with the Panel's orders?
The first issue for the Tribunal to determine is whether Cr Steck failed to comply with the Panel's orders.
Other than asserting it to be the case, Cr Steck did not provide the Tribunal with any evidence that the apology had actually been arranged to be published on 29 August 2019 (such as an invoice or receipt) nor has Cr Steck provided since 29 August 2019 any evidence of the published apology in the newspaper.
The Tribunal notes that Cr Steck's statement of issues, facts and contentions (where Cr Steck advised of the expected apology) was provided to the Tribunal via email by a solicitor, Mr Julius Skinner, who advised the Tribunal in his email as follows:
Thomson Greer is not formally representing Cr Steck in these proceedings, but has provided advice to Cr Steck from time to time. Please direct any correspondence to Cr Steck.
The Tribunal is of the view that it is the responsibility of Cr Steck to provide evidence in support of her case. It is not the responsibility of the CEO, or the Tribunal for that matter, to seek confirmation of the apology having occurred.
In consideration of the whole of the evidence in these proceedings, the Tribunal finds it cannot be satisfied as a matter of fact that the belated apology has actually occurred.
If it could be found that Cr Steck had published the apology, an issue may arise as to whether it could be said that Cr Steck has now actually complied with the Panel's orders in circumstances where order 3 of the Panel's orders omitted to impose a time limit. This same issue arose in Shire of Halls Creek and Taylor [2017] WASAT 161 (Taylor) at [21] and [27] where the Tribunal inferred a reasonable timeframe into order 3 relying on a decision of the Federal Court in Natural Floor Covering Centre Pty Ltd v Monamy (No 1) [2006] FCA 518 (Monamy).
If it could be found that Cr Steck had published the apology, in relation to the issue that order 3 of the Panel's orders did not include a timeframe, the Tribunal adopts the reasoning of the Federal Court in Monamy and finds that the apology provided on 29 August 2019, some ten months after the Panel's sanction was imposed, in any event, was not provided within a reasonable timeframe.
The Tribunal would be grateful if the Panel could consider amending its pro forma apology order 3 so this issue does not continue to arise in the Tribunal.
Therefore, even if it could be found as a matter of fact that Cr Steck had made the apology on 29 August 2019, the Tribunal would find that Cr Steck had not complied with the Panel's orders to apologise.
In answer to the first question, therefore, the Tribunal finds that Cr Steck has not complied with the Panel's orders in that she has not provided any apology.
What is the appropriate sanction?
The second, or subsequent, issue for the Tribunal to determine is the appropriate sanction, if any, for noncompliance with the Panel's orders.
Following the ordinary principles of statutory interpretation, it is clear from examining the LG Act and the specific provisions referred to above that Parliament considers it is a serious breach of the LG Act not to comply with orders of the Panel.
The Tribunal considered the provision of belated apologies in the context of the principles to be applied for noncompliance with the Panel's orders in Taylor and again recently in Sheridan (as CEO of the Shire of Chittering) and Gibson [2019] WASAT 12 (Gibson).
In Gibson the Tribunal considered that the significance that Parliament placed on failing to comply with the Panel's orders and considered such a failure as ‘particularly egregious' as follows at [39][42]:
39As set out above, the Tribunal's role in the current proceedings is to determine what, if any, penalty should be imposed on Cr Gibson for his accepted failure and noncompliance with the specific orders of the Standards Panel.
40In the Shire of Halls Creek and Taylor [2017] WASAT 161 (Taylor) and Shire of Denmark and Bartlett [2018] WASAT 58 (Bartlett) the Tribunal looked at the provisions of the LG Act under consideration in this matter and at [8] in Bartlett stated:
The Tribunal considered these particular legislative provisions in a recent decision of Shire of Halls Creek and Taylor [2017] WASAT 161 (Shire of Halls Creek and Taylor). I reiterate the observation made by the Tribunal in that decision at [29] as follows:
The Tribunal also notes that these proceedings are principally related to the alleged non-compliance with the Panel's orders, not the original minor breach as found by the Panel. There is a clear public interest in compliance with the Panel's orders as shown by the serious provisions in the LG Act as to the substantial penalty regime for such noncompliance.
41Counsel for the respondent in his closing submissions accepted that reality and further stated:
… the purpose in having this jurisdiction is to ensure that orders are complied with. So that the Standards Panel has meaning. And the Standards Panel must have meaning if [councillors] are to behave themselves. That's the policy position behind this legislation.
(ts 19, 20 December 2018)
42This Tribunal agrees with both of the above statements and notes that Parliament also saw the failure to comply with orders of the Panel as particularly egregious when it legislated that if the Tribunal is satisfied that the person failed to comply with such an order the two penalties the Tribunal could impose were limited to the most severe penalties available for serious breaches of the Act. That being a suspension of that person for a period of not more than six months (s 5.117(1)(a)(iv)) or a disqualification of that person from holding office as a counsellor for not more than five years (s 5.117(1)(a)(v)).
In Gibson in relation to the belated apology in apparent compliance with the Panel's orders, the Tribunal found at [54][57] as follows:
54However, the Tribunal does not agree with Cr Gibson's counsel that due to Cr Gibson's belated compliance with the Panel's orders following legal advice and his now clear understanding of the importance of compliance, that the matter should be dealt with by the making of no order.
55Complying with the Standards Panel's orders in the manner and within the time prescribed is something every councillor should be aware goes to the heart of the ongoing maintenance of appropriate standards of behaviour by councillors.
56Pritchard J at [123] in Treby and Local Government Standards Panel [2010] WASAT 81 when imposing a sanction for breaches by a councillor in that matter, outlined the purpose of sanctions generally stating:
… in my view a sanction should be imposed to reflect the community's disapproval of a contravention of reg 7(1)(b) and of cl 11.9 of the Standing Orders, to dissuade councillors from other local governments from engaging in similar conduct in the future, and thereby to maintain appropriate standards of behaviour by councillors during council meetings.
57Whilst recognising that Pritchard J's comments were made in respect of a matter dealing with a review of the Panel's initial findings regarding breaches of the Act, her Honours comments as to the purpose of sanctions being 'to dissuade councillors from other local governments from engaging in similar conduct in the future, and thereby to maintain appropriate standards of behaviour by councillors during council meetings' are in the Tribunal's view, apposite in the present matter.
Cr Steck, other than submitting that her partner had been suffering serious health issues from April to August 2019, did not provide the Tribunal with any evidence of his ill health and how such ill health may have directly impacted on her ability to make a public apology in either of the forms required by orders 2 and 3 of the Panel's orders. In any event, this period only explains noncompliance with the Tribunal's direction orders and Cr Steck's assertion on 15 April 2019 that she wished to apologise and withdraw from the proceedings and not the actual period of noncompliance with the Panel's orders which caused these proceedings to be brought by the CEO.
Cr Steck's noncompliance with the Tribunal's direction orders and failure to respond to numerous telephone messages as well as the late provision of her statement of issues, facts and contentions dated 26 August 2019, has left the Tribunal with the distinct impression that Cr Steck is dismissive of the Panel's orders. Further, the Tribunal is also left with the impression that Cr Steck has little to no insight into the need for local government councillors to comply with orders made by the Panel in a timely fashion and that a failure to do so has serious consequences under the LG Act.
Whilst it could be argued (if the Tribunal could find actual proof of the apology) that Cr Steck's belated attempt at compliance well into the conduct of the proceedings in the Tribunal is substantial compliance with the Panel's orders and the Tribunal should exercise its discretion to impose no sanction, the Tribunal finds that, in any event, the belated apparent apology diminished the desired effect of the apology.
Therefore, in accordance with these reasons the Tribunal finds under s 5.119 that Cr Steck not only failed to comply with the Panel's orders, but that it is appropriate in the exercise of the Tribunal's discretion to impose a sanction under s 5.117(1)(a)(iv) or (v) or suspend such an order under s 5.117(2) of the LG Act.
The Tribunal considers that the facts and circumstances surrounding Cr Steck's noncompliance with the Panel's orders to be a more serious instance of noncompliance than those in Taylor and Gibson as well as a more serious instance of no remorse or insight. Therefore, a more serious sanction on Cr Steck is required.
Therefore, in the exercise of the Tribunal's discretion as to the appropriate sanction for the serious breach by Cr Steck of the Panel's orders, taking into account all of the circumstances, the Tribunal finds that Cr Steck should be suspended from being a councillor for two months (in effect two ordinary council meetings). However, the Tribunal finds it is appropriate that this suspension should be suspended for 12 months from today on the condition that Cr Steck does not commit any further breaches of the LG Act in that time period.
This is in effect a suspension for two months, with such sanction suspended for 12 months on the condition of good behaviour by Cr Steck as expected of councillors pursuant to their duties and obligations under the LG Act. This suspension for two months will only take effect if, over the next 12 months Cr Steck is found to have committed any further breaches of the LG Act, and the Tribunal considers that it is appropriate to direct under s 5.117(7) of the LG Act that the two month suspension is to take effect.
Costs
The City noted in its statement of issues, facts and contentions that it has incurred $500 being the cost of the lodgement fee when making this application to the Tribunal.
In the exercise of the Tribunal's discretion to order costs in the circumstances of these proceedings and, in particular, the conduct of Cr Steck in these proceedings, the Tribunal finds that the City should be compensated by Cr Steck for the lodgement fee of $500: see Taylor at [33]-[44].
Orders
In accordance with these reasons, the Tribunal orders as follows:
1.The applicant's name is amended to Malcolm Osborne (as CEO of the City of Bunbury).
2.Subject to order 3, pursuant to s 5.117(1)(a)(iv) of the Local Government Act 1995 (WA) (LG Act), the respondent is suspended for two months from her office of councillor on the council of the City of Bunbury.
3.Pursuant to s 5.117(2) of the LG Act, the suspension referred to in order 2 above is suspended for a period of 12 months from the date of this order on condition that the respondent does not commit any further breaches of the LG Act within the 12 month suspended period.
4.Within 14 days of the date of this order, pursuant to s 87 of the State Administrative Tribunal Act 2004 (WA), the respondent is to pay to the City of Bunbury the amount of $500.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS D QUINLAN, MEMBER
16 SEPTEMBER 2019
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