Re and Local Government Standards Panel

Case

[2011] WASAT 108

13 JULY 2011

No judgment structure available for this case.
RE and LOCAL GOVERNMENT STANDARDS PANEL [2011] WASAT 108
Last Update:  18/07/2011
RE and LOCAL GOVERNMENT STANDARDS PANEL [2011] WASAT 108
Jurisdiction: STATE ADMINISTRATIVE TRIBUNAL   Citation No: [2011] WASAT 108
Act: LOCAL GOVERNMENT ACT 1995 (WA)
Case No: DR:27/2011   Heard: 21 APRIL 2011
Coram: JUDGE T SHARP (DEPUTY PRESIDENT)   Delivered: 13/07/2011
No of Pages: 18   Judgment Part: 1 of 1
Result: Decision of the Local Government Standards Panel affirmed
Category: B
[Click here for Judgment in Adobe Acrobat Format ]
Parties: ELIZABETH RE
LOCAL GOVERNMENT STANDARDS PANEL
ATTORNEY GENERAL FOR WESTERN AUSTRALIA

Catchwords: Local government Standards of behaviour expected of a council Appropriate sanction for minor breach of Local Government Act 1995 (WA) Breach of reg 7(1)(b) Local Government (Rules of Conduct) Regulations 2007 (WA) Public apology
Legislation: Local Government (Rules of Conduct) Regulations 2007 (WA), reg 4, reg 7, reg 7(1)(b)
Local Government Act 1995 (WA), s 5.103(1), s 5.104, s 5.105, s 5.105(1), s 5.106, s 5.107, s 5.108, s 5.109, s 5.110, s 5.110(6)(b), s 5.21(3)
State Administrative Tribunal Act 2004 (WA), s 31(1)

Case References: Treby and Local Government Standards Panel [2010] WASAT 81



Orders: On the application determined by Deputy President, Judge Sharp on 13 July 2011, it is ordered that:
1. The decision of the Standards Panel made on 22 December 2010 that the applicant had committed a minor breach of the Local Government Act 1995 (WA) by contravening reg 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007 (WA) is affirmed.
2. The Orders of the Local Government Standards Panel made on 22 December 2010 in relation to the sanction to be imposed on the applicant for the minor breach she committed are affirmed save that the time for compliance with Order 2 is the next City of Stirling Ordinary Council Meeting immediately following the date of delivery of these Reasons for Decision and the time for compliance with Order 3, if applicable, is a date within 14 days of the date of that Meeting.

Summary: Councillor Elizabeth Re is a member of the City of Stirling Council. She applied to the Tribunal for a review of a decision of the Local Government Standards Panel which required her to apologise in relation to some comments which she made about two other councillors in an email which she sent to certain local residents following a formal meeting of the Council. The Standards Panel found that the comments constituted a breach of the Council's Code of Conduct and reg 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007 (WA).
Councillor Re argued that she had sent the email as a private citizen, not as a councillor, that she did not intend to cause detriment to any person, and in any event that her comments did not extend beyond what was already a matter of public record.
The Tribunal agreed with the Standards Panel that the comments in the email were made as a council member, were an improper use of Councillor Re's office as a council member and that Councillor Re believed that the intended result of sending the email would be to cause detriment to the two councillors named in her email. It agreed with the conclusion of the Standards Panel and upheld its decision.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM : DEVELOPMENT & RESOURCES ACT : LOCAL GOVERNMENT ACT 1995 (WA) CITATION : RE and LOCAL GOVERNMENT STANDARDS PANEL [2011] WASAT 108 MEMBER : JUDGE T SHARP (DEPUTY PRESIDENT) HEARD : 21 APRIL 2011 DELIVERED : 13 JULY 2011 FILE NO/S : DR 27 of 2011 BETWEEN : ELIZABETH RE
                  Applicant

                  AND

                  LOCAL GOVERNMENT STANDARDS PANEL
                  Respondent

                  ATTORNEY GENERAL FOR WESTERN AUSTRALIA
                  Intervenor

Catchwords:

Local government - Standards of behaviour expected of a council - Appropriate sanction for minor breach of Local Government Act 1995 (WA) - Breach of reg 7(1)(b) Local Government (Rules of Conduct) Regulations 2007 (WA) - Public apology

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Legislation:

Local Government (Rules of Conduct) Regulations 2007 (WA), reg 4, reg 7, reg 7(1)(b)
Local Government Act 1995 (WA), s 5.103(1), s 5.104, s 5.105, s 5.105(1), s 5.106, s 5.107, s 5.108, s 5.109, s 5.110, s 5.110(6)(b), s 5.21(3)
State Administrative Tribunal Act 2004 (WA), s 31(1)

Result:

Decision of the Local Government Standards Panel affirmed

Category: B

Representation:

Counsel:


    Applicant : Self-represented
    Respondent : Mr C Bydder
    Intervenor : Mr C Bydder

Solicitors:

    Applicant : Self-represented
    Respondent : State Solicitor's Office
    Intervenor : State Solicitor's Office



Case(s) referred to in decision(s):

Treby and Local Government Standards Panel [2010] WASAT 81


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REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 Councillor Elizabeth Re is a member of the City of Stirling Council. She applied to the Tribunal for a review of a decision of the Local Government Standards Panel which required her to apologise in relation to some comments which she made about two other councillors in an email which she sent to certain local residents following a formal meeting of the Council. The Standards Panel found that the comments constituted a breach of the Council's Code of Conduct and reg 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007 (WA).

2 Councillor Re argued that she had sent the email as a private citizen, not as a councillor, that she did not intend to cause detriment to any person, and in any event that her comments did not extend beyond what was already a matter of public record.

3 The Tribunal agreed with the Standards Panel that the comments in the email were made as a council member, were an improper use of Councillor Re's office as a council member and that Councillor Re believed that the intended result of sending the email would be to cause detriment to the two councillors named in her email. It agreed with the conclusion of the Standards Panel and upheld its decision.


Introduction

4 The applicant is a member of the council of the local government of the CityofStirling (Council). On 22December2010, the applicant was ordered by the respondent (Standards Panel) to publicly apologise to two other members of the Council, CouncillorItaliano and CouncillorProud. The order was made by the StandardsPanel pursuant to s5.110(6)(b) of the Local Government Act 1995 (WA) (LG Act).

5 The applicant seeks a review by the Tribunal of the StandardsPanel's decision.

6 At the hearing before the Tribunal on 21April2011, the applicant appeared in person. The StandardsPanel was represented by MrCBydder of the StateSolicitorsOffice, although the StandardsPanel did not play an active role in the proceeding. Its role was confined to producing a document setting out the issues, facts and contentions it considered arose in the proceeding. The Tribunal agrees that this limited participation is appropriate in view of the fact that, under s31(1) of the State Administrative Tribunal Act 2004(WA) (SAT Act), the Tribunal

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      may invite the Standards Panel to reconsider its decision. The Tribunal was therefore assisted by the intervention of the Attorney General of Western Australia who, through MrBydder, acted as a contradictor in the proceeding.
7 The StandardsPanel handed in its bundle of documents (Exhibit 1) and called a witness, Councillor Proud (Exhibit 2). The applicant handed in its bundle of documents (Exhibit 3). By order of Senior Member Parry on 28January2011, the applicant's documents were to be treated as her witness statement and she was also cross-examined by counsel for the intervenor.

8 The applicant also filed 17witness statements from various local residents (Exhibits 4 - 20 inclusive).


Background

9 The background to this matter can be stated quite briefly. A motor fuel and service station on Scarborough Beach Road, Innaloo had been operated for many years by the Martinofamily under the name AmpolDoubleview and Martino'sAutos. The owners of the station, Caltex, applied to Council to redevelop the property as a convenience store and motor fuel station. The effect of this would be, at least according to the applicant, to see the end of the Martinofamily's long standing connection with the property, deprive local residents of a local service station (the proposed new premises would not include a vehicle servicing component), and would employ less people (thus, in the opinion of the applicant, creating safety issues in the area).

10 The development application was approved at a meeting of the City's Council on 13October2009. Six councillors, including CouncillorProud and CouncillorItaliano voted in favour of the application and six against, including the applicant. The 'presiding person's second vote' (s5.21(3) of the LGAct) carried the application seven votes to six.

11 The applicant had since about 1994 been a member of the Woodlands Action Group (WAG) which appears to be, at least latterly, a group of local residents with a common interest in keeping themselves informed about issues concerning the local community. The applicant's role seems to be limited to writing and circulating an electronic newsletter to other residents, informing them of local activities and events.

12 On 5 February 2010, the applicant sent out by email what was entitled 'WAG 3 Update 4 February' (the email).

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13 The address panel of the email was as follows:

          From: Elizabeth Re [mailto:[email protected]]

          Sent: Friday, February 05, 2010 3:27 AM

          To: Ire

          Subject: WAG 3 Update 4 February

14 The content of the email, so far as it is relevant to this matter, is as follows:
          Hi Everyone

          Hope there was a smooth start to school for those who have children and for all of the people who remembered the 40km speed limit around the schools! I thought that some of the activities down at the Scarborough Beach have been great although we still have to be mindful to slip; slop and slap; to protect our skin

          Don't forget there is still free mulch around so take the gardening opportunity! Stay safe and have a good week Elizabeth Elizabeth Re

          5. Martino service station ­ Ampol ­ Scarborough Beach Road Innaloo

          It is with deep regret that I officially inform you that the majority of Councillors at the City of Stirling voted for the redevelopment of the Martino service station site and they have to leave within weeks to make way for just a petrol station and convenience store ( like BP 200 metres down the road) .

          The redevelopment could have included a service centre if Councillors had voted that it stayed on the site and the area cosmetically attended to!

          This site was held by the four generations of the local Martino family for 53 years, which supported their families and our community. They employed around 15 local people, was the only local place to hire a trailer or a lawn mower, get your car serviced (and often a free lift home while it was being worked on) and actually do drive way service if you didn't want to put petrol in your car and all of course with a smile and a friendly chat . The current Martino service station is in keeping with the objectives of the Stirling City Centre the new proposal does not appear to parallel itself! The passage below is taken from the Council minutes from the meeting the whole of the item and other items are available on the Council's website

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          It was especially disappointing to see the other local ward Councillor Proud (9446 6929) and Councillor Italiano (9244 8355) vote for the redevelopment. If either councillor (just one) had voted against the redevelopment, the results would have been different. If you contact them you may be able to find answers that I can't and also contact Mayor Boothman (9207 3033) who used his two votes to push the Martino family out of the 53 year old local family business.

          Council Resolution ­ 1009/004

          Moved Councillor Italiano, seconded Councillor Stewart

          1. That the Western Australian Planning Commission be ADVISED that the amended Outline Development Plan for Precinct 6 (south) for the area bounded by Scarborough Beach Road, Bowra Avenue and Ewen Street, Innaloo be approved.

          2. That Pursuant to Clause 2.8.2 (b) of Town Planning Scheme No 38 the application for a Convenience Store/Service Station at Lot 212, House Number 365, Scarborough Beach Road, Innaloo beAPPROVED subject to the following conditions:

              a. Reciprocal Rights of Access Agreement is to be provided with all adjoining lots at the applicant's expense and registered on the land Title to the satisfaction of the City.

              b. All land indicated as landscaped area on the approved plan being developed on practical completion of the buildings to the satisfaction of the City. All landscaped areas are to be maintained in good condition thereafter.

              c. The street verge and on-site areas being landscaped and reticulated to the satisfaction of the City and maintained in good condition thereafter.

              d. Vehicle parking, maneuvering [sic] and circulation areas indicated on the approved plan being sealed and drained, the twelve (12) parking spaced being marked out and maintained in good repair to the satisfaction of the City.

              e. Vehicle crossovers, parking, maneuvering [sic] and circulation areas indicated on the approved plan being provided with adequate signage and road markings to ensure safe vehicular movements to the satisfaction of the City.

              f. The Right of Way is to be widened and upgraded for the full length of the development's Right of Way frontage. The construction of the Right of Way is to be to the satisfaction of the Manager Engineering Design. The extent of works required in the Right of Way is to be determined by the City's

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                Engineering Department prior to the issue of a Building Licence. Working drawings for construction of the Right of Way and a bank guarantee or cheque to the value of the estimated cost of that portion of the Right of Way are to be submitted prior to the release of the Building Licence.
              g. All proposed signage within the future road widening area to be removed upon request from the City to facilitate the road widening in the area.

              h. The existing City of Stirling stormwater pipes located within the subject lot are to be relocated at the applicant's expense to the satisfaction of the City.

              i. Stormwater from all roofed and paved areas to be collected and contained on-site.

              j. Any on-site floodlights not being positioned or operated in such a manner so as to cause annoyance to surrounding residents uses or passing traffic.

          The motion was put and declared CARRIED (7/6).

          For:Councillors Boothman, Getty, Italiano, Proud, Sebrechts and Stewart.

          Against: Councillors Collins, Furlong, Michael, Re, Thomas and Tyzack.

          Mayors Casting Vote ­ For: CouncillorBoothman.

15 In April 2010, CouncillorProud complained to the Standards Panel and alleged that by making the remarks contained in the email, the applicant committed a minor breach under s 5.105 of the LG Act. Specifically, Councillor Proud alleged that the applicant contravened reg 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007 (WA) (Regulations) in that the applicant made improper use of her office of council member to cause detriment to Councillor Italiano and Councillor Proud 'by publishing in her February 2010 edition of her electronic newsletter known as WAG Update, an article headed 'Martino service station - Ampol - Scarborough Beach Road Innaloo'.

16 On 22 December 2010, the Standards Panel determined that the applicant had committed a minor breach under the LG Act by breaching reg 7(1)(b) of the Regulations. The Standards Panel ordered that the

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      applicant publicly apologise to both Councillor Italiano and to Councillor Proud at the next following council meeting. The terms of the apology were prescribed by the Standards Panel.



The relevant statutory provisions

17 Section 5.104 of the LG Act enables regulations to be made prescribing rules of conduct for council members.

18 Regulation 7(1) of the Regulations (being regulations made under s 5.104 of the LG Act) provides:

          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.

19 Section 5.105(1) of the LG Act provides:
          Breaches by council members

          (1) A council member commits a minor breach if he or she contravenes -

              (a) a rule of conduct under section 5.104(1); or

              (b) a local law under this Act, contravention of which the regulations specify to be a minor breach.

20 The standard of proof in relation to findings of a breach is that it is more likely that the breach occurred than it did not occur - s 5.106 of the LG Act.

21 Section 5.107 to s 5.110 of the LG Act sets out the procedure for dealing with alleged minor breaches by council members including the role of the Standards Panel in determining whether or not a minor breach has occurred.

22 Section 5.110(6) provides that the Standards Panel may deal with a minor breach by:

          (a) dismissing the complaint;
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          (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).

23 Section 5.103(1) of the LG Act requires every local government to prepare and adopt a code of conduct to be observed by council members, committee members and employees.

24 Council has adopted a code of conduct (Code) pursuant to s 5.103(1). It relevantly provides:

          Working Ethically with Each Other

          Appropriate Behaviour

          One of the ways a positive culture is built in the City is by its Elected Members and Employees following the standards of appropriate behaviour provided in the Code.

          All Elected Members and Employees should behave appropriately towards each other and in the course of carrying out public duties. Their conduct should contribute towards creating and maintaining a supportive work environment.

          Appropriate behaviour includes conduct that is courteous, polite and business-like. It involves treating colleagues with respect and courtesy. The City's values should be applied in all business dealings and underpin behaviour in relationships.

          Working Ethically with the Community

          Contact with the Community

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          Elected Members and Employees must make every effort to be positive, helpful and effective when communicating with the community.

          Elected Members are the public face of local government. Their dealings with people in the community are numerous. They communicate with them about their issues and act on their behalf at Council meetings. It is therefore important for Elected Members and Employees to ensure:

          • confidential information remains confidential unless it is determined by law or otherwise that release of the information is appropriate; and

          • decisions, processes and policy information which affect the community are communicated accurately and in a timely way.

25 The Tribunal notes that a breach of the Code is not a minor breach for the purposes of s 5.105(1) of the LG Act. However, the Code is clearly indicative of the standards of conduct expected from a member of council.


The issues arising on the review

26 The issues which require resolution concern the proper construction of reg 7(1)(b) of the Regulations and whether the applicant's email breached that regulation.

27 The applicant does not dispute that she was a member of Council in February 2010, nor does she dispute that she made the remarks attributed to her in the email. Accordingly, the issues still to be resolved are as follows:

          1. Did the applicant's circulation of the email constitute a use of her office as a council member?

          2. If so, was that use an improper use of the applicant's office as a council member?

          3. If so, did the applicant believe that the intended result of sending the email would be to cause detriment to either or both of CouncillorItaliano and CouncillorProud?




Did the applicant's circulation of the email constitute a use of her office as a council member?

28 The applicant submits that she circulated the email in her capacity as an individual, not in her capacity as a member of Council. She points out that the email was sent from her home, or personal, email address, using her own computer, and that she had been sending these newsletters out

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      regularly since around 1994, long before she became a member of Council. She only became a councillor in 2005. She points out that the email was signed 'Elizabeth Re', with no reference to her position as councillor.
29 Had the applicant only recently become a councillor, there may have been some substance to this argument. However, she had been a councillor for around five years at the time when the email was sent. It is at least unrealistic for the applicant to believe that the recipients of her email would see her in any role other than that of their local councillor.

30 Notably, the applicant then submits that 'Communication to the rate payer is also an important facet of being a Councillor' and that as a councillor she is 'encouraged to keep members of the community informed as part of the role and to establish a good working relationship with the community and this can be achieved and is often a common practice by Councillors, sending letters, organising forum, having their own websites and producing newsletters, such as WAG'. (Exhibit 3, page 3).

31 At this point, the Tribunal could already conclude, from the applicant's own admission, that her email was circulated in her capacity of councillor. This conclusion, though, finds further support in other evidence which the applicant provided to the Tribunal. The applicant submitted to the Tribunal a number of witness statements from various recipients of the email. While these statements are intended to show strong support for the applicant and her work in the community, some of them also indicate that the recipients of WAG newsletters regard these newsletters as being from the applicant in her capacity as a member of the council of the City.

32 In one of them, from Ms Craven (Exhibit 4), she says that the applicant is 'the only Cr. who lives in this Ward' and 'appears to have been a lone voice "fighting our corner" and the person who genuinely cares for local residents'.

33 Mr Pitcher (Exhibit 5) says that the applicant 'is the only councillor who lives in our ward, and the only one to empathise with our problems'.

34 Ms Bee (Exhibit 6) says 'Cr. Re has made herself familiar with all these issues and she has always made herself available to the residents of Parklands Village for consultative purposes'.

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35 Mr Valenti (Exhibit 10) says in reference to the WAG newsletter, 'I believe that the electronic newsletters are important method of communication today and the information provided, especially on Council decisions, as I do not have time to go to meetings or to read three hundred page agendas on the whole of the City issues'.

36 Ms Palmer (Exhibit 15) says that while she is 'not directly affected by the Martino garage issue I am affected by councillor's rights and responsibilities to support their local ward residents on issues and to keep such residents informed'.

37 Mr and Mrs Hadley (Exhibit 16) also express their appreciation for the WAG newsletter and say that 'perhaps it would be an appropriate strategy for other City of Stirling Councillors to adopt as a service to their residents'.

38 Finally, Councillor Terry Tyzack (Exhibit 19) suggests that the email 'was intended to inform residents of her position on the (Martino) matter and to direct some of the enquiries to … Councillor Stephanie Proud'. He then goes on to say 'it is not unusual for Councillors, when put under pressure, to direct enquiries to other persons whom they believe should or could provide answers. Councillor Re clearly took this position and chose to use her long established method, the WAG newsletter'.

39 The Tribunal is satisfied that the applicant's circulation of the email did constitute a use of her office as a council member.


Was that use an improper use of the applicant's office as a council member?

40 In Treby and Local Government Standards Panel [2010] WASAT 81, (Treby) Judge Pritchard as she then was, considered at length the meaning of 'improper use' in reg 7(1)(b) of the Regulations. She concluded at [59] that there is no warrant to give reg 7(1)(b) a more limited operation than its ordinary and natural meaning suggests.

41 In particular, she said that impropriety is 'a breach of the standards of conduct that would be expected of a person in the position of the [councillor] by reasonable persons with knowledge of the duties, powers and authority of his position as a councillor and the circumstances of the case' ­ Treby at [29]. Impropriety does not depend on a councillor's consciousness of impropriety. It is to be judged objectively and does not involve an element of intent ­ Treby at [30].

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42 This continues to be the Tribunal's view of the meaning of 'improper use'.

43 Counsel for the intervenor submits and the Tribunal agrees that the standards of conduct that would be expected of a member of a local government can be discerned from the fiduciary obligations which council members owe to their councils and in a range of statutory and non­statutory instruments, including the LG Act itself, and the codes of conduct, local laws as to conduct and regulations which the LG Act contemplates may be made to regulate the conduct of members of local governments. Council for the intervenor pointed to, in particular, the provisions of the Code which are quoted earlier in these reasons, relating to the conduct of councillors towards each other in the course of carrying out public duties. As the Code says, appropriate behaviour includes conduct that is courteous, polite, and business­like. It goes on to say that councillors are to ensure that decisions which affect the community are communicated accurately.

44 The applicant, on the other hand, argues that disseminating material and information to members of the public is encouraged under the Code. She says that the motion to which she refers in her email, the reported outcome and how councillors voted were all factually correct and therefore she was doing nothing more than disseminating in an email in good faith information that was widely available in the public arena. The applicant says that freedom of speech 'is not restricted in WA … Council cannot control the freedom of speech if the information is factual'. (Exhibit 3 page 3).

45 That, with respect, misses the point. The Tribunal does not suggest that reg 7 of the Regulations prohibits a council member from questioning or even criticising the actions of others which impact on the community. It only limits the freedom of a councillor to communicate matters in a way which constitutes an improper use of a councillor's office and in a way which intends to cause detriment to another.

46 The Tribunal finds that the applicant's email failed to reach the required standards in a number of respects:

          1. The applicant in her email said that 'the majority of Councillors at the City of Stirling voted for the redevelopment'. While this might technically be correct, in fact the votes of the 12 members present were equally
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              divided, giving rise to the person presiding having to cast a second vote.
          2. The applicant in her email said that '[t]he redevelopment could have included a service centre if Councillors had voted that it stayed on the site and the area cosmetically attended to'. The applicant knew or should have known that this was an incorrect statement, at least to the extent that the advice to the Council was that there was no statutory basis for the City to seek to require the retention of the service centre (Exhibit 1, page 73 and page 76).

          3. The applicant in her email said that the 'current Martino service station is in keeping with the objectives of the Stirling City Centre'. While it is difficult to understand what the applicant meant by this, it at least suggests that the proposed redevelopment could have been lawfully refused, whereas, again, the advice to the Council was that 'approval of the proposed redevelopment is justified and warranted' (Exhibit 1, page 71).

          4. The applicant in her email singled out Councillors Proud and Italiano (and provided their telephone numbers) as being the persons responsible for the decision of Council, when, as has already been observed, they were two of six councillors who voted in favour of the redevelopment of the site. The applicant in her email said that if only one of them voted against the proposal then the result would have been different. This is undoubtedly true, but there is no obvious reason why Councillors Proud and Italiano should have been named when the same could have been said of any of the six Councillors who voted for the proposal.

          5. The applicant in her email suggested that if the recipients of the email 'contact [Councillors Proud and Italiano] you may be able to find answers that I can't'. Councillor Proud stated (Exhibit 2, paragraph 5) that she 'had received no enquiries at all about Council's decision to approve Caltex's development application in October 2009 (some four months previously). The enquiries … only began after the email was sent'. Under cross­examination, the applicant said that her only

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              enquiry was to have asked Councillor Proud at the relevant Council meeting 'how could you do this?' (T: [76], [21.4.11], but the words 'answers I can't' would suggest that a greater level of enquiry had been conducted.
47 The Tribunal concludes that it is more likely than not that in sending the email the applicant engaged in an improper use of her office as councillor.


Did the applicant believe that the intended result of sending the email would be to cause detriment to either or both of Councillor Italiano and Councillor Proud?

48 A councillor's improper use of his or her office is not sufficient to contravene reg 7(1)(b). It is therefore necessary to consider whether the remarks were made to cause a detriment to Councillor Proud and to Councillor Italiano.

49 In Treby, Judge Pritchard as she then was, also considered the meaning of 'detriment' in reg 7(1)(b) of the Regulations and concluded that it should be given its ordinary and natural meaning ­ Treby at [103]. The ordinary and natural meaning of 'detriment' is loss or damage done or caused to, or sustained by, any person or thing ­ Treby at [94]. A contravention of reg 7(1)(b) does not depend on an actual detriment being suffered by a person. All that must be established is that the applicant believed that the intended result of his or her conduct would be that the other person would suffer detriment ­ Treby at [96].

50 The Tribunal respectfully agrees with these conclusions.

51 The Tribunal accepts the applicant's claim that she was concerned about the redevelopment. The Tribunal also recognises the applicant's desire to keep residents informed about local issues and occurrences, including decisions of Council. However, the applicant could have done this in a way which accurately reported this particular decision of Council and which did not suggest that any one Councillor was particularly responsible for the outcome. She knew, or should have known, that the 'Martino' issue was of particular concern to some residents and that by providing the names and telephone numbers of Councillors Proud and Italiano, she knew, or should have known, that those residents would direct their attention to those two people, on the basis that the applicant had suggested that they and they alone were responsible for the decision. The applicant asserts that she was simply diverting these queries from

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      herself to others. She said that she had to 'stop the amount of people ringing me up, leaving messages for me and emails, contacting me, contacting my children' (T: [66], [21.4.11]). When she was asked whether she was expressly inviting people to call Councillors Proud and Italiano she said 'To avoid them calling me and abusing me and putting more stress in my life, yes'. (T: [78], [21.4.11]. It follows that she knew that her email would or might cause detriment to those others.
52 As we have already observed, whether it did in fact cause detriment to Councillors Proud and Italiano is not something which needs to be considered.

53 The Tribunal therefore concludes that it is more likely than not that the applicant believed that the intended result of sending out that email would be that Councillors Proud and Italiano would suffer detriment.


The applicant's further submissions

54 The other submissions made by the applicant would seem to relate to, first, the correctness or otherwise of the decision of Council in regard to the approval of the development application, second, the fact of the intervention by the Attorney General, third, the fact that Councillor Italiano made no complaint about the email and yet she is required to apologise to him as well as to Councillor Proud, fourth, the fact that the applicant had no legal representation, whereas the Standards Panel had the services of the State Solicitor's Office available to them and fifth, that she had been denied 'natural justice' and 'procedural fairness' by reason of the Standards Panel not holding a hearing prior to making its original determination.

55 We deal with those points briefly as follows:

          1. The correctness or otherwise of the decision of Council in regard to the approval of the development application is not relevant to the Tribunal's deliberations.

          2. We have commented on the intervention by the Attorney General earlier in these reasons.

          3. The fact that Councillor Italiano made no complaint about the email has no bearing on this matter. Councillor Proud was perfectly entitled to complain that the applicant had committed a minor breach and her complaint was that the applicant made improper use of her office of council

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              member to cause detriment to her and to Councillor Italiano. It was then for the Standards Panel to deal with that complaint.
          4. The Tribunal need not comment on the fact that the applicant had no legal representation.

          5. So far as regards the applicant's assertions concerning natural justice and procedural fairness, given that the proceedings before the Tribunal are by way of a hearing de novo, it is unnecessary to question the procedure followed by the Standards Panel in reaching their determination. The Tribunal should add, however, that there is nothing to indicate that there are any flaws in the processes of the Standards Panel.




Conclusion

56 The Tribunal is satisfied that the evidence in this case supports that the conclusion that it is more likely than not that the applicant breached reg 7(1)(b) of the Regulations.

57 The Tribunal therefore affirms the decision of the Standards Panel in so far as it pertained to the contravention of reg 7(1)(b).

58 The applicant did not challenge the penalty imposed if the decision of the Standards Panel were to be affirmed. The Tribunal is satisfied that the correct and preferable decision in relation to the sanction for the breach of reg 7(1)(b) is that Ms Re should be required to make a public apology, in the terms set out by the Standards Panel, at the next meeting of Council.


Orders

59 The Tribunal makes the following orders:

          1. The decision of the Standards Panel made on 22 December 2010 that the applicant had committed a minor breach of the Local Government Act 1995 (WA) by contravening reg 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007 (WA) is affirmed.

          2. The Orders of the Local Government Standards Panel made on 22 December 2010 in relation to the sanction to be imposed on the applicant for the minor breach she

(Page 18)
              committed are affirmed save that the time for compliance with Order 2 is the next City of Stirling Ordinary Council Meeting immediately following the date of delivery of these Reasons for Decision and the time for compliance with Order 3, if applicable, is a date within 14 days of the date of that Meeting.
      I certify that this and the preceding [59] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

      ___________________________________

      JUDGE T SHARP, DEPUTY PRESIDENT


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