Re and Local Government Standards Panel
[2014] WASAT 111
•28 AUGUST 2014
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT (RULES OF CONDUCT) REGULATIONS 2007 (WA)
CITATION: RE and LOCAL GOVERNMENT STANDARDS PANEL [2014] WASAT 111
MEMBER: MR P McNAB (SENIOR MEMBER)
HEARD: 15 APRIL AND 30 JULY 2014
PUBLISHED : 28 AUGUST 2014
FILE NO/S: DR 344 of 2013
BETWEEN: ELIZABETH RE
Applicant
AND
LOCAL GOVERNMENT STANDARDS PANEL
Respondent
Catchwords:
Local government Regulation of Councillors Local Government Standards Panel Rules of Conduct Minor breach Conduct at a Council meeting Mayor of Local Government lodging complaint of disruptive behaviour and breach of Standing Orders by Councillor Mayor making procedural ruling Mayor adjourning meeting temporarily Mayor alleging incident was improper use of office by Councillor Mayor alleging Councillor had intention to cause detriment by her conduct - Panel finding intention to cause detriment established - Panel ordering public censure - Councillor admitting to breach of Standing Orders and to an overreaction on Councillor's part in her exchange with Mayor Essential facts otherwise admitted by Councillor Councillor apologised to Panel below for her conduct Tribunal finding Councillor disorderly Tribunal finding breach of Standing Orders established Tribunal assuming that detriment and improper use of office had been established Sole issue to be determined was intention of Councillor Intention required sufficient proof of design or resolve to cause detriment Intent could be constructive where reasonable expectation or anticipation of result Proof of detrimental effect insufficient by itself to prove intent Proof of breach of Standing Orders insufficient by itself to prove intent Extent that breakdown in working relationship between Mayor and Councillor relevant Councillor alleged pattern of bullying, harassment and discrimination by Mayor Tribunal declining to make findings on wider issues or to apportion blame Tribunal finding intent to cause detriment not established Councillor's actions found to be spontaneous Councillor’s intention was to immediately challenge Mayor's criticism of Councillor Intention of Councillor to deal with a perceived injustice to her and to correct alleged factual errors by Mayor Extent of overreaction by Councillor insufficient by itself to demonstrate requisite intention Finding and sanction of Panel set aside Whether Tribunal could go on to impose a sanction for a breach of the Standing Orders Tribunal holding that it had jurisdiction to deal with breach of Standing Orders Public apology at Council meeting ordered by Tribunal for a breach of Standing orders Words and phrases: 'intent'; 'constructive intent'; 'detriment'; 'disorderly'
Legislation:
Local Government (Rules of Conduct) Regulations 2007 (WA), reg 3, reg 3(1), reg 3(2), reg 4, reg 4(1), reg 4(2), reg 7, reg 7(1)(b)
Local Government Act 1995 (WA), s 5.105(1)(a), s 5.105(1)(b), s 5.107(2), s 5.107(4), s 5.110(6), s 5.110, s 5.110(2)(a), s 5.110(6)(b)(i), s 5.110(6)(b)(ii), s 5.125, Sch 5.1 cl 8.6
State Administrative Tribunal Act 2004 (WA), s 29
Result:
Application for review successful in part; minor breach finding and sanction varied
Summary of Tribunal's decision:
Councillor Elizabeth Re is an elected Councillor of the City of Stirling. At a City of Stirling Council meeting in September 2011, Councillor Re was called to order by the presiding member, the then Mayor, Councillor David Boothman. There was an exchange between the parties, which led to the temporary adjournment of the meeting. Later, Mayor Boothman would make a complaint to the Local Government Standards Panel to the effect that Councillor Re had been disruptive and had breached the City's Standing Orders and that, by her actions at the meeting, she had improperly used her office as a Councillor to cause detriment to him and the City of Stirling. Such allegations, if proved, were regarded as 'minor breaches' of the rules of conduct applicable to Councillors.
The parties did not have a particularly good working relationship before this episode, and Councillor Re would subsequently allege that the September 2011 incident was part of a wider pattern of bullying, harassment and discrimination on the part of the Mayor, allegations which the Mayor denied. The Tribunal declined to become involved in determining these wider issues or in apportioning blame in respect of the events of the September 2011 meeting. Such matters were generally irrelevant to the narrow issue to be decided in the Tribunal, but such matters indicated a context for the events under review.
Councillor Re admitted to the Tribunal that her conduct at the meeting was an 'overreaction' on her part; that it was below accepted standards; and that it had the effect of weakening the Mayor's authority. Councillor Re admitted to a breach of the Standing Orders and had offered an apology to the Local Government Standards Panel.
The Panel found that the complaint had been proved and ordered that Councillor Re be publicly censured for her conduct.
On review, the Tribunal found that Councillor Re had breached the Standing Orders and that she had been disorderly. Assuming that Councillor Re's actions had caused detriment (a term which the Tribunal had, in other cases, defined in wide terms) and that her conduct was an improper use of her office, the sole remaining issue to be determined was whether Councillor Re had the requisite intention to cause detriment. Proof of a detrimental effect and proof of a breach of the Standing Orders were insufficient, in themselves, to prove that Councillor Re intended to cause detriment.
Such intention required satisfactory proof of the formation of a purpose, design, resolve or determination in Councillor Re's mind sufficient to show that she acted to cause detriment. However, constructive intent could be established where detriment could have been reasonably expected or anticipated to flow from particular acts or events.
The Tribunal was not satisfied that Councillor Re had intended to cause detriment by her actions. Rather, her actions were directed at requiring the Mayor to immediately justify or account for his ruling or comments in the general context of the parties' strained relationship. Councillor Re's objections were spontaneous in nature (an impulsive 'overreaction', as she had admitted). The fact that the exchange perhaps continued unnecessarily or disproportionately for a very short time after the immediate objection did not indicate either an intention to cause detriment, or constructive intent to cause detriment.
The Tribunal set aside both the decision of the Panel and the proposed sanction imposed by the Panel. However, the Tribunal went on to consider whether the Tribunal had jurisdiction to deal with the proved breach of the Standing Orders. Looking at analogous tribunals dealing with alleged misconduct and complaints, and having regard to the statutory purpose and functions of the Panel, the Tribunal considered that the Panel did have jurisdiction to, in effect, 'amend' the complaint before the Panel or to consider a related, alternative complaint based upon the substance (or facts) of the complaint made by the Mayor. Accordingly, as the Tribunal, generally speaking, stood 'in the shoes of' the Panel (for review purposes), the Tribunal had the same powers or jurisdiction as the Panel.
After hearing further from the parties, the Tribunal imposed a sanction of requiring Councillor Re to apologise publicly at a meeting of the Council for her breach of the Standing Orders.
Category: B
Representation:
Counsel:
Applicant: Mr LE James
Respondent: Mr CS Bydder
Solicitors:
Applicant: Kott Gunning
Respondent: State Solicitor's Office
Case(s) referred to in decision(s):
Australian Securities and Investments Commission (ASIC) v Australian Property Custodian Holdings Ltd (recs and mgrs apptd) (in liq) (Controllers appointed) (No 3) [2013] FCA 1342
Bloomfield v Real Estate and Business Agents Supervisory Board of Western Australia (1995) 13 SR (WA) 138
Hipkins and Local Government Standards Panel [2014] WASAT 48,
Macri v Western Australian Planning Commission [2014] WASC 153
Moore River Company Pty Ltd and Western Australian Planning Commission [2006] WASAT 269
Phillips and Local Government Standards Panel [2012] WASAT 97
Re and Local Government Standards Panel [2011] WASAT 108
Steck and Local Government Standards Panel [2011] WASAT 117
Tarjali-Diab v NSW Department of Commerce (No 2) [2005] NSWADT 288
Treby and Local Government Standards Panel [2010] WASAT 81; (2010) 73 SR (WA) 66
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Arising out of an ordinary Council meeting of the City of Stirling (City) on the evening of 27 September 2011, the then Mayor of the City, Councillor David Boothman, lodged a complaint to the Local Government Standards Panel (Panel) concerning the conduct of the applicant, his fellow Councillor, Elizabeth Re (applicant).
The complaint was lodged in February 2012 and alleged that Councillor Re had failed to adhere to a ruling by the Mayor (in his capacity as presiding member). Councillor Boothman further alleged that Councillor Re had become 'aggressive [and] argumentative', in effect forcing the Mayor to temporarily adjourn the meeting. The complaint was alleged to be a contravention of reg 7 of the Local Government (Rules of Conduct) Regulations 2007 (WA) (Rules of Conduct), the terms of which are set out below.
The Panel upheld the complaint. In short, it was found that Councillor Re had, by acts on her part, behaved in a disorderly or disruptive manner (detailed below) and thereby made improper use of her office as a Council member so as to 'cause detriment' to the City or some other person, namely, the presiding member Mayor Boothman. Such misconduct, if proved, would be a 'minor breach' as that term is statutorily defined: see s 5.105(1)(a) of the Local Government Act 1995 (WA) (LG Act).
Councillor Re was ordered by the Panel to be the subject of a 'public censure', which was to be published in certain newspapers (see s 5.110(6)(b)(i) of the LG Act). (That obligation has been stayed pending the review.)
The applicant has sought a review of both the Panel's principal findings and the sanction imposed by the Panel.
In the Tribunal, the applicant properly, and to her credit, admitted that her conduct on the evening in question was an 'overreaction' on her part; that it was below accepted standards; and that it also had the effect of weakening the Mayor's authority. Councillor Re also admitted that she was in breach of the applicable Standing Orders.
The substantive issue before the Tribunal is whether Councillor Re had the relevant intention to 'cause detriment' to any person by her admitted conduct.
The Tribunal has concluded that the applicant did not have the requisite intention to 'cause detriment'. However, the Tribunal has found that Councillor Re did commit a breach of the City's Standing Orders, which is also a 'minor breach' within the meaning of the LG Act, and that, accordingly, she should be required to apologise for her conduct both to the Mayor and to her fellow Councillors at an ordinary meeting of the Council.
Relevant legislation
It is necessary to set out the parts of several instruments in order to obtain an appreciation of the rules and standards applicable to Councillors in a case such as this.
First, there is the principal focus found in reg 7(1)(b) of the Rules of Conduct regulations made under the LG Act. Regulation 7 provides as follows (emphasis added):
Securing personal advantage or disadvantaging others
(1)A person who is a council member must not make improper use of the person's office as a council member -
(a)to gain directly or indirectly an advantage for the person or any other person; or
(b)to cause detriment to the local government or any other person.
(2)Subregulation (1) does not apply to conduct that contravenes section 5.93 of the [LG Act, dealing with improper use of information] or The Criminal Code section 83 [dealing with official corruption].
In Treby and Local Government Standards Panel [2010] WASAT 81; (2010) 73 SR (WA) 66 (Treby), Pritchard DCJ (as her Honour then was) observed, at [56], that reg 7 of the Rules of Conduct:
… is directed, amongst other things, to ensuring that the debate within a council meeting is conducted in a fair, orderly and courteous fashion and that councillors are given the opportunity to speak and to be heard, with the objective of facilitating the proper consideration and determination of council business.
The Rules of Conduct also refer to '[g]eneral principles to guide the behaviour of council members': see reg 3 of the Rules of Conduct (referred to by the Panel, at paragraph 58). Included in those duties are obligations to act so as 'to avoid damage to the reputation of the local government' and 'to treat others with respect and fairness'.
However, under reg 3(2) of the Rules of Conduct, the general principles referred to in reg 3(1) 'are for [the] guidance of council members but it is not a rule of conduct that those principles be observed'.
Also referred to by the Panel were the City's Standing Orders (see at paragraph 20). These are contained in the City's Meeting Procedures Local Law 2009 (Standing Orders). Part 8 of the Standing Orders imposes a duty on the presiding member 'to preserve order'. A corresponding power is given to a presiding member 'to call any member to order' whenever 'he or she considers it necessary' so to do: clause 8.1(1) of the Standing Orders.
The presiding member may 'rule on any point of order which is raised' and there is a corresponding mechanism for a motion of dissent to be moved to test any such ruling: see clause 8.4 of the Standing Orders.
Finally, clauses 8.5 and 8.6 of the Standing Orders provide as follows:
8.5Continued breach of order
If a member -
(a)persists in any conduct that the presiding member had ruled is out of order; or
(b)fails or refuses to comply with a direction from the presiding member ...
the presiding member may direct the member to refrain from taking any further part in that meeting, other than by voting, and the member must comply with that direction.
8.6Presiding member may adjourn meeting
(1)For the purpose of preserving or regaining order, the presiding member may adjourn the meeting for a period of up to 15 minutes.
(2)On resumption, the debate is to continue at the point at which the meeting was adjourned.
(3)If, at any one meeting, the presiding member adjourns the meeting more than once for the purpose of preserving or regaining order, the second or subsequent adjournment may be to a later time on the same day or to another day.
Under the LG Act, a Council member commits a 'minor breach' if he or she contravenes the Rules of Conduct or 'a local law under [the LG Act], contravention of which the regulations specify to be a minor breach': s 5.105(1)(b). Regulation 4(2) of the Rules of Conduct specifies 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 LG Act.
The Standing Orders are such a local law, as they 'relate to conduct of people at council or committee meetings' within the meaning of reg 4(1) of the Rules of Conduct. See also Treby and Local Government Standards Panel [2009] WASAT 224.
The events of 27 September 2011
The 'exchange' between the Mayor and Councillor Re on 27 September 2011 was captured on audio tape. The full tape was played in the Tribunal and the flavour of it is captured in these exchanges from a transcript reproduced in the Panel's reasons for decision:
[Mayor Boothman[:]] 'Councillor Re, I'd ask you to tidy up your desk and stop ripping up papers please because it's distracting to other people including myself. You have been previously advised not to do that. If you wish to speak after Councillor Willox then please do as I request. Councillor Willox.'
…
[Mayor Boothman:] 'Cr Stewart? … Councillor Re, I informed you that you are distracting, you are making a mess of your desk. I asked you to clean up your desk. If you are going to continue as you are doing then I am not going to recognise you for the purpose of entering the debate until … such time as …'
[Councillor Re:] 'Excuse me Mr Mayor, I haven't got a messy desk.'
[Mayor Boothman:] 'Councillor, Councillor, I am not arguing with you.'
[Councillor Re:] 'For what reason? That is against the standing orders[.]'
[Mayor Boothman:] 'Alright, Councillor, please take your seat. I have ruled you out of order.'
[Councillor Re:] 'For what reason?'
[Mayor Boothman:] 'Councillor I have ruled you out of order. Please resume your seat.'
[Councillor Re:] 'For what reason?'
[Mayor Boothman:] 'Councillor!'
[Councillor Re:] 'Someone get me the Local Government Act. Now!'
[Mayor Boothman:] 'Councillor! Councillor! I advised you earlier on.'
[unknown male Councillor:] 'Point of order, Mr Mayor[.]'
[Mayor Boothman:] 'I am not going any further.'
[Councillor Re:] 'For what reason?'
[Mayor Boothman:] 'Please sit down and be quiet.'
[Councillor Re:] 'No. You can actually say it under the Local Government Act for what … right now …?'
[Mayor Boothman:] 'Councillor … Councillor[.]'
[Councillor Re:] 'You are in breach of the Local Government Act for not allowing me to knowledge [sic] or speak.'
[Mayor Boothman:] 'Meeting is adjourned[.]'
The Panel noted, at paragraph 48, the 'tone, volume and stridency' of Councillor Re's interaction with the Mayor. At paragraph 67, the Panel recorded its finding that the exchange showed that Councillor Re was 'loud, unruly, stopp[ed] debate and disrupt[ed] the meeting'. In answers to questions from the Tribunal, Councillor Re properly accepted that she had a 'raised voice' (but that she was not shouting) and that her tone could be described as 'strident'.
The Panel found the applicant:
(a)was defiant and inappropriately challenged the presiding member,
(b)[was] loud and unruly,
(c)disobeyed the presiding member,
(d)stopped debate, and
(e)disrupted the meeting.
The Tribunal has already noted above the applicant's acknowledgment of the acceptance by her of the general inappropriateness of her response to the Mayor's ruling.
Applicant's case
Counsel for the applicant, Mr L James, focused on putting the incident of 27 September 2011 into its wider or more complete context, and he also took the opportunity to present evidence concerning the specific events on the night in question.
Councillor Re had already taken the same course with the Panel below, and that material is before the Tribunal. In addition, she had painted, from her point of view, a relatively long history of a deteriorating relationship with Mayor Boothman, alleging before the Panel that he had 'bullied', 'harassed' and otherwise discriminated against her. These allegations were denied by Mayor Boothman.
The Tribunal received evidence from fellow Councillors (past and present) testifying to such matters as Councillor Re's satisfactory decorum, enthusiasm, dedication, and diligence.
Former Councillor Paul Collins, who was present at the meeting on 27 September 2011, said that he thought that Mayor Boothman 'picked on' Councillor Re 'unfairly, having pulled her up more often than any other Councillor'. He said that there seemed to be a 'personality clash' between Mayor Boothman and Councillor Re 'which was exacerbated by a power imbalance in favour of the Mayor'.
A former Mayor and current Councillor, Mr T Tyzack, (in his witness statement received by the Tribunal) said of the specific incident:
In responding quite spontaneously and passionately, Councillor Re was responding emotionally to the unexpected and unwarranted reprimand from Mayor Boothman.
In his evidence to the Tribunal, he said (T:87; 15.04.14):
[Councillor Re] had asked the mayor to give reasons why she was being told she would not be heard because of an untidy desk and she was asking under what standing order that ruling was being made and she got quite emotional and she got quite agitated and, of course, as the tape shows, she raised her voice.
In short, this material shows the tensions in the relationship between Mayor Boothman and Councillor Re, and otherwise generally supports Councillor Re's version of events on the night in question. Some of the material illustrates Councillor Re's temperament; her enthusiasm, exuberance, and passion are, on occasion, evident.
Councillor Re gave evidence, and she was extensively cross‑examined. Councillor Re denied any intention to cause detriment.
Intervenor's case
The Panel found, at paragraph 60, that when Mayor Boothman ruled Councillor Re out of order, there was 'no evidence' to suggest that the Mayor:
(a)did anything other than act to preserve order and uphold standing orders;
(b)did anything other than act as he then saw necessary; and
(c)was acting outside of his powers, role and responsibilities as presiding member.
Counsel for the intervenor, Mr C Bydder, called Mayor Boothman and Councillor Stephanie Proud (who sits immediately on Councillor Re's right‑hand side) to confirm their version of events and to rebut Councillor Re's evidence. Mayor Boothman records that his complaint to the Panel was in response to Councillor Re lodging a complaint concerning a letter that he had sent to her about the events of 27 September 2011. That complaint was dismissed by the Panel.
Mayor Boothman properly conceded that 'to an extent' the whole incident was a 'storm in a tea cup … that sort of got out of hand'.
It is convenient to note at this point that prior to the incident on 27 September 2011, Councillor Re had been required to publicly apologise to Councillor Proud and another Councillor in respect of an email which she had sent to certain local residents following a meeting of the Council (see Re and Local Government Standards Panel [2011] WASAT 108, a matter unrelated to this complaint). In addition, Councillor Re had, in November 2010, moved an unsuccessful vote of no confidence in Mayor Boothman for which she would eventually publicly apologise; that event (that is, the giving of the apology) took place in April 2013.
In the Tribunal's view, because of the relatively narrow issue to be decided in the present proceeding (see the Tribunal's reasons below on ascertaining intention to cause detriment), it is unnecessary to descend too far into (let alone resolve conflicts with respect to) the events and circumstances leading up to and including the incident or incidents on the evening of 27 September 2011. The Tribunal observes, however, that it is probable that the poor relationship between Councillor Re and the Mayor contributed to Mayor Boothman being, perhaps, overly sensitive to any perceived distraction or noise thought to be emanating from Councillor Re's participation at Council meetings.
Suffice it to say then there had been for some time a strained relationship between Councillor Re and Mayor Boothman and that is the context in which the events under review took place, and such matters are relevant only to that extent.
Issues for resolution
Given the applicant's concessions and the existence of the audio tape, the critical facts as to the exchange between the Mayor and the applicant are common ground between the parties. Thus, there can be no real dispute about that central incident and that, at least in terms of applicable norms of conduct (including the rules to be found in the Standing Orders), the applicant was relevantly 'disorderly'.
This is so because, in the Tribunal's view, a member of a deliberative assembly will be 'disorderly' when that person acts '[c]ontrary to the rules of good order and behaviour': Blacks' Law Dictionary (West Publishing, 6th ed, 1990). Those 'rules of good order' extend to a failure of a party to use a well‑established mechanism under the relevant rules for expressing dissent, in an orderly way, from a presiding member's ruling: cf clause 8.4 of the Standing Orders (set out above).
There can be no real issue here that these acts occurred other than by way of the 'use' by her of Councillor Re's office as a Council member. She was, after all, attending and speaking at an official Council meeting and in her capacity as an elected Councillor.
Concentrating, for the moment, only on the exchange itself (and not on the much wider context contended for by the applicant, which may be relevant for other purposes), such acts were, in the Tribunal's view, the 'improper' use of a person's office as a Council member. In other words, such conduct was 'so wrongful and inappropriate in the circumstances that it calls for the imposition of a penalty': see Hipkins and Local Government Standards Panel [2014] WASAT 48, at [9] (internal citation omitted).
However, as the Tribunal noted in Steck and Local Government Standards Panel [2011] WASAT 117 (Sharp DCJ, at [50]), even if behaviour:
… involves conduct which is judged to be an improper use of a councillor's office, that would not result in a contravention of reg 7(1)(b) unless that improper use of office is also made to cause detriment to another person.
Assuming, then, that detriment has been established in relation to the effects of disorderly conduct on persons and institutions (cf Treby at [94] adopting a wide view of 'detriment' as any relevant 'loss or damage done or caused to, or sustained by any person …'), and further assuming that the other elements of reg 7(1)(b) of the Rules of Conduct are satisfied (that is, improper use of office) the critical issue becomes one of satisfactory proof of the final element, namely, intent to cause detriment.
In Treby, Pritchard DCJ discussed 'intent' in the context of reg 7(1)(b) of the Rules of Conduct. Her Honour said (at [96], internal citations omitted, emphasis added):
A contravention of reg 7(1)(b) does not depend on actual detriment being suffered by a person … However, it must be established that the councillor believed that the intended result of his or her conduct would be that the other person would suffer detriment[.]
And, at [105] and [107] of Treby, her Honour recorded the following matters:
Counsel for the intervenor [Mr Bydder] submitted that in the absence of admissions by either applicant that they intended to cause a detriment … the Tribunal should find that intention only if the only inference open was that it was more likely than not that each applicant intended to cause detriment or that each applicant's conduct was done with reckless indifference that the detriment was a probable or likely consequence of his conduct …
In my view, the only reasonable inference which is open on a consideration of all of the evidence is that in making the [relevant remarks at a Council meeting], the applicants intended to cause detriment … Having regard to the derogatory nature of the remarks, it is difficult to see any other plausible explanation for why such remarks were made. Although the applicants claimed that they made the remarks because they were concerned about the possible consequences of the opposing comments, they did not offer any explanation for why they resorted to insulting and derogatory remarks[.]
In the present matter, Mr Bydder made similar submissions to those he made in Treby. The submission is illustrated in the context of the facts of this case in these exchanges with the Tribunal (T:96; 15.04.14, emphasis added):
[The Tribunal]: So it's the uttering of the words and the actions themselves [that] infer the intention to do the things which caused the disruption, the breach[?]
[Mr Bydder]: Well, indeed. The proper inference, in my submission, from Councillor Re's conduct and what inevitably had to flow from it in terms of its effect upon the institution of the local government and upon the mayor, it must be inferred, in my respectful submission, that her intention was to cause those detriments in the broad sense [of Treby].
[The Tribunal]: Yes, well, I'm still troubled by that, because if you accept what Councillor Re [did, in that] she had a spontaneous over-reaction, she accepts this; she was upset, she had a context [sic] that was going on. You know, you could quite reasonably believe her that she didn't intend to disrupt the meeting, even though it's clear by the wilful actions on her part; standing up, challenging … the presiding officer - that she did intend to do those acts, and they had an effect of [causing a] breach of the standing orders …[One] could understand her point of view that she didn't actually intend to cause that damage, it was just a spontaneous reaction, she didn't have any element of wilfulness in her.
[Mr Bydder]: The conclusion is open, sir. It's a question of which is more likely. In my respectful submission, given the inevitable consequences of her conduct … and the nature of it [intention can be established].
In Steck, the Tribunal considered an alleged breach of reg 7(1)(b) of the Rules of Conduct in connection with the conduct of a Councillor who lodged a notice of motion with the Chief Executive Officer of the City of Bunbury. The Tribunal applied Treby: see at [51] and [52].
The Tribunal found that although the lodging of the notice of motion (which was highly critical of, among others, a senior officer of the City of Bunbury) was the improper use of the Councillor's office, there was insufficient evidence of intent to cause detriment to the person concerned to satisfy a finding of misconduct in terms of reg 7(1)(b) of the Rules of Conduct. The Tribunal concluded in Steck, at [65], as follows:
On balance, the Tribunal concludes that the [Councillor] did not expect that the form of the Notice of Motion would be posted on Council's website merely by her submitting it to the CEO and therefore it cannot be said that the intended result of her conduct would be to cause [the senior officer] to suffer detriment.
The Panel in that case had found that the Councillor 'so gave that notice [of motion] with the intent and purpose that its contents would be made publicly available in the agenda for the Standing Committee [of Council]'. Despite the reference to only the Council's website set out above, the Tribunal considered (see particularly at [57]) the expectations about, and practices concerning (and the Councillor's knowledge and intentions as regards), the notice of motion being made generally publicly available following its lodgement. This emphasis on the publication of the notice was how the case was framed before the Tribunal. One could speculate that the result might well have been different if detriment could have been proved (perhaps no easy task) in relation to doing the act itself of lodging the notice.
Conclusions on Councillor Re's intentions
Although neither of the words 'intent' or 'intention' expressly appear in reg 7(1)(b) of the Rules of Conduct, the approach of the Tribunal and the Panel to date suggest, as we have seen, that the words 'cause detriment' require the establishment of a requisite intent to do the same.
Blacks' Law Dictionary notes that 'intent' involves the '[d]esign, resolve or determination with which a person acts'. It is 'the state of mind in which a person seeks to accomplish a given result through a course of action'; a 'mental attitude which can seldom be proved by direct evidence, but must ordinarily be proved by circumstances from which it may be inferred'. The learned authors remind us that intent and motive 'should not be confused':
Motive is what prompts a person to act, or fail to act. Intent refers only to the state of mind with which the act is done or omitted.
So too, the Encyclopaedic Australian Legal Dictionary (LexisNexis) in its on‑line entry for 'intention':
The formation of a purpose or design in mind; the mental act of determining to take some certain action or pursue some certain result.
'Constructive intent' is defined in Blacks' Law Dictionary 'as exist[ing] where one should have reasonably expected or anticipated a particular result'. Constructive intent, in the Tribunal's view, will therefore extend to 'reckless indifference' as that term is used in Treby (see above).
The fact that a breach of the Standing Orders is established or that some 'detriment' may have resulted from deliberate acts (which might have other consequences) does not, without more, support an inference of an intention to cause detriment. In Australian Securities and Investments Commission (ASIC) v Australian Property Custodian Holdings Ltd (recs and mgrs apptd) (in liq) (Controllers appointed) (No 3) [2013] FCA 1342, at [625], Murphy J said:
Proof that the effect of the [relevant act] is the … [cause of] detriment is not sufficient, and in order to establish proof of purpose it must be shown that the defendant intended that the advantage or detriment would result and also believed that it would[.]
Here, the Tribunal does not consider that Councillor Re's intention was to cause anybody 'detriment'. Rather, the Tribunal's view is that Councillor Re's acts were overwhelmingly spontaneous in nature (an impulsive 'overreaction', as she admitted), but influenced, of course, by an already poor relationship with the Mayor. In this case (but not every case), where the actual 'truth' lies (in relation to who was 'correct' in respect of the exchange and its immediate circumstances and aftermath) is largely irrelevant to the task of ascertaining relevant intention except, as the Tribunal has already indicated, to the limited extent that a relevant context is supplied.
The Tribunal considers that Councillor Re's state of mind was most likely directed at requiring the Mayor to immediately justify or account for his ruling or comments; hence, for example, her repeated calls of 'For what reason?' In the Tribunal's view, that was her 'determination' in the context of her relationship with the Mayor and his response to her actions as he perceived them. And, what started out as an objection by her (in effect itself a point of order) became, in effect, a relatively small but unintended remonstrance. In short, had Councillor Re made her points in a more restrained way, then it is unlikely that we would be here today. However, even if the exchange continued unnecessarily or disproportionately for a very short time after her immediate objection, this does not indicate either an intention to cause detriment or constructive intent on Councillor Re's part.
The Panel pointed to the fact, at paragraph 73, that by reason of previous correspondence with the Mayor, Councillor Re 'could not have been taken by surprise by Mayor Boothman again raising the issue of tearing papers etc'. However, with respect, Councillor Re's reaction might be equally viewed as one of surprise that such a matter was again being raised, given her previous written denials and firm protests.
Indeed, the fact that the exchange continued beyond the initial objection suggests, in the circumstances, and as the Tribunal has said, 'spontaneity' and, for that matter, a corresponding lack of premeditation or planning. To break down a brief incident into an unintentional part, and then an intentional or constructive part, injects an air of unreality into a brief, albeit disorderly, transaction occurring in a long meeting.
The Tribunal should not be taken, however, as suggesting that premeditation is a necessary element of intention in this context. Nevertheless, its absence or presence may be relevant in forming a judgment about relevant intent in appropriate disciplinary cases. Likewise, the Tribunal should not be taken as suggesting that a spontaneous act can never indicate relevant intention, particularly in cases where constructive intent is in issue.
To sum up, the evidence here, on balance, points to a finding that at the critical point or points when Councillor Re launched her unfortunate challenge to the ruling and conduct of the presiding member (and immediately thereafter), her 'design', such as it was, was to rectify, as it turned out by pointed interjections, a perceived 'injustice' to her, one that was additionally based upon an alleged mistake made by the Mayor concerning the facts (that is, the state of her desk and her allegedly distracting behaviour). There can be no doubt that some detriment flowed from this conduct manifested in 'disorderly' acts, but Councillor Re did not, in the Tribunal's view, have, hold or form the requisite intention to cause that detriment in the circumstances of the case.
Accordingly, because of this conclusion the Panel's finding below, with respect, must be set aside.
However, that does not end the matter because if the Tribunal has jurisdiction it would seem appropriate for the Tribunal to deal with the breach of the Standing Orders established on the facts (and in the same transaction complained of by Mayor Boothman) admitted to by the applicant and for which she has already apologised in writing in response to the Panel's principal findings. (As to this previous apology, see Councillor Re's short letter of apology and explanation to the Panel, and the Panel's reasons and decision on an appropriate sanction to be imposed, dated 9 May 2013 at paragraphs 8 and 13.)
Jurisdiction to deal with the breach of Standing Orders
Some aspects of the jurisdiction of this Tribunal on a review of a decision of the Panel are discussed by Parry DCJ in Phillips and Local Government Standards Panel [2012] WASAT 97 (Phillips). That case decided that this Tribunal did not have jurisdiction to review either a finding of the Panel that a minor breach alleged in a complaint did not occur, or a finding by the Panel that it did not have jurisdiction to determine a complaint of a minor breach against a former Councillor.
Phillips reminds us, at [55], that:
The Tribunal does not exercise a roving review jurisdiction in relation to statutory administrative or disciplinary decision-making. In order for the Tribunal to have jurisdiction in a matter, a statutory provision must confer jurisdiction upon it. It is within the exclusive province of the Parliament to decide whether, to what extent, and to whom, to confer a right to seek review in relation to statutory administrative and disciplinary decisions.
The State Administrative Tribunal Act 2004 (WA) (SAT Act) governs the Tribunal's exercise of its jurisdiction. The main provisions are set out and discussed briefly at [27] to [31] of Phillips. Of present relevance are the powers and functions of the Tribunal found in s 29 of the SAT Act which provides, so far as is relevant, as follows:
Tribunal's powers in review jurisdiction
(1)The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decision-maker in making the reviewable decision.
(2)Subsection (1) does not limit the powers given by this Act or the enabling Act to the Tribunal.
…
(9)To avoid doubt it is declared that this section and section 27 [dealing with the de novo nature of review proceedings] do not extend to requiring or enabling the Tribunal to deal with a matter that is different in essence from the matter that was before the decision-maker.
The jurisdiction given to the Panel below is to be found in s 5.110 of the LG Act which provides, so far as is relevant, as follows (emphasis added):
…
(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.
…
(4) A standards panel is required to give each party written notice of the reasons for any finding it makes under subsection (2).
(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).
(6) The breach is to be dealt with by
(a) dismissing the complaint;
(b) ordering that
(i) the person against whom the complaint was made be publicly censured as specified in the order;
(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
(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).
The review jurisdiction of this Tribunal is found in s 5.125 of the LG Act, which provides as follows:
(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 dismiss a complaint or to make an order.
Thus, it seems that the Tribunal's jurisdiction will be confined to a review of the Panel's decision where, in effect, it has made a finding that 'the breach alleged in the complaint occurred' (s 5.110(2)(a) of the LG Act, emphasis added). That is the case here.
The complainant, Mayor Boothman, on the approved administrative form 'Complaint of Minor Breach form' ('Official Conduct Form 1') ticked the box identifying reg 7 of the Rules of Conduct ('Securing personal advantage or disadvantaging others') but did not tick the box referring to reg 4 of the Rules of Conduct ('Breach of local law relating to conduct of meeting').
Such a complaint must detail in writing the following matters (s 5.107(2) of the LG Act):
(a) who is making the complaint; and
(b) who is alleged to have committed the breach; and
(c) the contravention that is alleged to have resulted in the breach; and
(d) any other information that the regulations may require [not relevant].
Notwithstanding that a breach of reg 7 of the Rules of Conduct is identified on the administrative form, the complaint raises, from the outset, a history of alleged breaches of the Standing Orders by Councillor Re: see page 1 of the attachment to the complaint form specifying in the second paragraph specific clauses of the Standing Orders said to have been breached. The complaint goes on to develop this theme in relation to the events of the evening of 27 September 2011, leading to an allegation of detriment to both the complainant and the City and an allegation of conduct on the part of the applicant which 'does not in any way exhibit any of the general principles of behaviour of Council members as outlined in the rules of conduct legislation'.
In Bloomfield v Real Estate and Business Agents Supervisory Board of Western Australia (1995) 13 SR (WA) 138 (Bloomfield), the District Court took a wide view of the power to, in effect, amend 'charges' during disciplinary hearings, subject to the giving of appropriate notice. At 145, Barlow DCJ said:
I am of the view that once an inquiry into the conduct of an agent has been initiated, the Board may, during the course of such inquiry, investigate any matters which come to its attention which indicate that the person the subject of the inquiry may not have acted in conformity with the agent's code of conduct and/or may have failed to comply with a requirement of the Act. In my view the Board would be remiss if it failed to investigate such conduct. In reaching this view I have had regard to the nature and function of the Board, namely the regulation and supervision of persons acting in respect of real estate transactions in certain business transactions.
Bloomfield is consistent with the common law position applying to disciplinary tribunals as is discussed, for example, in Justice in Tribunals (JRS Forbes, Federation Press, 4th ed, 2014), at pages 133 to 136 and 141 to 144.
In Treby, the Tribunal notes that the respondent Councillors were dealt with together in relation to the one 'incident', a series of statements at a Council meeting, and were found to have breached both the Standing Orders and reg 7(1)(b) of the Rules of Conduct. However, this result presumably came about in respect of complaints brought to the Panel in that form, as could have occurred here.
As the Panel itself noted, cl 8(6) of Sch 5.1 of the LG Act 'requires the Panel's members to have regard to the general interest of local government in Western Australia'. Subject to the need to comply with any rule of procedural fairness (and, if relevant, any statutory time limitation if a 'new' complaint is, in fact, raised: cf s 5.107(4) of the LG Act), I cannot see any reason in principle why the Panel here, given its functions and purpose, could not have allowed either the complaint form to be, in effect, amended to make such a further and related complaint (on the same facts) either in substitution or in the alternative, or for the Panel, in any case, to have found, in the alternative or cumulatively, a contravention of a local law as to conduct. After all, the underlying substance of the 'breach alleged in the complaint' related to or is found in a breach of Standing Orders; these are the basal facts alleged.
It follows that, on review, this Tribunal, generally speaking, could do the same as the Panel: see s 29 of the SAT Act set out above; cf Moore River Company Pty Ltd and Western Australian Planning Commission [2006] WASAT 269 and Macri v Western Australian Planning Commission [2014] WASC 153, at [15] and [16].
The parties were asked to make submissions on this aspect of the Tribunal's jurisdiction. Both parties contended that the Tribunal lacked jurisdiction to proceed as indicated above.
The parties were also asked to make brief submissions on an appropriate sanction to be imposed if the Tribunal found that it had jurisdiction to deal with a breach of the Standing Orders. Mr James declined to do so 'since the Tribunal has no jurisdiction to consider any such charge'. Mr Bydder was content with the course indicated by the Tribunal: a public apology in lieu of public censure.
However, on the issue of jurisdiction, Mr Bydder submitted that Bloomfield (and similar authorities) may be distinguished because the relevant statutory regime in those cases was quite different from that exercised by the Panel as it extended to the 'regulation and supervision' of certain licensed persons. Here, neither the Panel nor the Tribunal had any similar supervisory functions or jurisdiction. Rather, the Panel's jurisdiction was confined to 'determining whether the breach alleged in the complaint occurred'. Mr James adopted those submissions contending that the Tribunal 'cannot make any finding in respect of a breach with which the [a]pplicant was not charged before the [r]espondent'.
With respect to learned counsel, I cannot accept that the Tribunal is so constrained. Viewed as an underlying principle in the construction of the powers of a relevant (and speaking generally) 'disciplinary' body, the Tribunal's position is consistent with, for example, the views expressed in Tarjali-Diab v NSW Department of Commerce (No 2) [2005] NSWADT 288 (Tarjali-Diab, affirmed: [2006] NSWADTAP 41 at [8]-[9]:
Section 103 of the ADA [that is, the Anti-Discrimination Act 1977 (NSW)] was inserted into the ADA as an amendment to the ADA pursuant to the Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004 … It is the Tribunal's view that, although the amendment now allows the Tribunal to amend a complaint to include additional complaints that were not investigated by the President [of the Anti-Discrimination Board (ADB)], it would be a denial of procedural fairness and the right to be informed of the nature of the case to be answered by the Respondent to allow an amendment to include a complaint of discrimination on the ground of disability and victimisation after all the evidence has been presented by both the Applicant and the Respondent.
Additionally, prior to the amendments to the ADA and the insertion of section 103(2), the Tribunal held in Dee v Commissioner of Police & Anor [2003] NSWADT 217 and Fricke v Corbett Research Pty Ltd [2004] NSWADT 128 that it could not consider complaints that went beyond the parameters of the original complaint contained in the President's report. However it was also held in Dee's case by the Tribunal that, where the facts of the complaint as made to the President of the ADB could support a different characterisation of the conduct, the Applicant is not bound by the earlier characterisation. Accordingly, if the complaint to the ADB contained, as stated by the Tribunal in Dee's case, 'incidents and harms which could imply' a complaint of discrimination on the ground of disability and/or victimisation, the Tribunal could entertain such a complaint even though it had not been characterised as such and thus could amend the complaint to include such complaints.
Although the Tribunal was there dealing with, in effect, the applicant's 'power' of re-characterising their complaint (in original and not review jurisdiction), there is nothing in principle which is not equally applicable to the case where re-characterisation is undertaken by the decision-maker, including the review or appeal body (as, in effect, occurred in Tarjali-Diab). No objection to the same course should be taken here 'where the facts of the complaint … could support a different characterisation of the [relevant] conduct'.
With respect to any sanction, the LG Act provides in s 5.110(6) as follows:
The breach is to be dealt with by -
(a)dismissing the complaint; 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
(c)ordering 2 or more of the sanctions described in paragraph (b).
As is noted above, this incident was, at the time at which it occurred, a second breach by Councillor Re of the Rules of Conduct. (The other breach - improper use of office to cause detriment - occurred in February 2010 and was resolved, after a review in this Tribunal, by a public apology delivered at a Council meeting in August 2011.) The other breach occurred, the Tribunal notes, in quite different circumstances from those found here, namely, a breach of the Standing Orders.
An appropriate sanction in this case is, in the Tribunal's view, a requirement for a public apology to be delivered to Mayor Boothman and Councillor Re's fellow Councillors, to be scheduled for a Council meeting to be held in the near future.
The Tribunal will seek Mr Bydder's assistance (as occurred in Corr and Local Government Standards Panel [2014] WASAT 86) in formulating the precise terms of that apology and for liaising with Councillor Re's legal representatives and the appropriate authorities as to its timing and delivery.
Orders
For the reasons given above, the orders of the Tribunal are:
1.The application for review is allowed.
2.The respondent's finding that the applicant committed a breach of regulation 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007 (WA) is set aside.
3.In lieu of the respondent's finding there is substituted a finding that the applicant committed a breach of regulation 4(2) of the Local Government (Rules of Conduct) Regulations 2007 (WA), by breaching the City of Stirling's Standing Orders.
4.In lieu of the respondent's order under section 5.110(6)(b)(i) of the Local Government Act 1995 (WA) that the applicant be publicly censured, there is substituted an order under section 5.110(6)(b)(ii) of the Act that the applicant apologise publicly in the following terms (public apology):
'The State Administrative Tribunal has found that it is more likely than not that on [TERMS OF APOLOGY TO BE GIVEN EFFECT, AS AGREED BETWEEN THE PARTIES OR AS DETERMINED].'
5.The applicant must:
(a)make the public apology at the Ordinary Council Meeting of the City of Stirling to be held on [DATE TO BE AS AGREED BETWEEN THE PARTIES OR AS DETERMINED] (Ordinary Council Meeting); and
(b)refrain from otherwise commenting during the Ordinary Council Meeting on the matters that are the subject of the public apology.
6.The intervenor has liberty to apply in relation to any alleged noncompliance by the applicant with these orders.
7. Otherwise, liberty to apply is reserved to all parties for 21 days.
I certify that this and the preceding [82] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR P McNAB, SENIOR MEMBER
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