Ryan and Local Government Standards Panel

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT:   LOCAL GOVERNMENT ACT 1995 (WA)

CITATION:   RYAN and LOCAL GOVERNMENT STANDARDS PANEL [2009] WASAT 154

MEMBER:   JUSTICE J A CHANEY (PRESIDENT)

HEARD:   5 MARCH 2009

DELIVERED          :   13 AUGUST 2009

FILE NO/S:   DR 417 of 2008

BETWEEN:   ANNE DAWN RYAN

Applicant

AND

LOCAL GOVERNMENT STANDARDS PANEL
Respondent

ATTORNEY GENERAL OF WESTERN AUSTRALIA
Intervenor

Catchwords:

Local Government - Conduct of councillor - Whether minor breach - Questions at council meeting - Implication of improper conduct by CEO and alleged lobbyist - Whether questions amounted to comment - Whether comment caused detriment - Improper use of position as councillor
Words and phrases - 'comment' - 'detriment' - 'improper use of position'

Legislation:

Corruption and Crime Commission Act 2003 (WA), s 4
Local Government (Rules of Conduct) Regulations 2007 (WA), reg 4, reg 7(1), reg 7(1)(b)
Local Government Act 1995 (WA), s 5.103(1), s 5.104, s 5.105(1), s 5.105(1)(b), s 5.106, s 5.107, s 5.108, s 5.109, s 5.110, s 5.110(6)(b), s 5.110(6)(c), Pt 5 Div 9

Result:

Application to review dismissed

Category:    B

Representation:

Counsel:

Applicant:     Mr M Handcock

Respondent:     Ms T Cole

Intervenor:     Ms T Cole

Solicitors:

Applicant:     Effective Legal Pty Ltd

Respondent:     State Solicitor's Office

Intervenor:     State Solicitor's Office

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

R v Byrnes (1995) 183 CLR 501

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. Councillor Anne Ryan is a member of the Busselton Shire Council.  She applied to the Tribunal for a review of a decision of the Local Government Standard Panel which publicly censored her and required her to apologise in relation to certain questions she asked at a formal meeting.  The standards panel found that the questions amount to a comment that was adverse to the CEO of the Shire, M Andrew Macnish and another person, Mr William Mitchell, and constituted a breach of the Council's standing orders, its Code of Conduct and Rules of Conduct regulations for local government councillors.

2. Councillor Ryan argued that the questions would not be construed as comments that were adverse to, or caused detriment to, Mr Macnish or Mr Mitchell.

3. The Tribunal agreed with the standards panel that the way the questions were asked, and in particular the introduction of the questions, carved an inference adverse to Mr Macnish and Mr Mitchell, and could properly be considered to be a comment.  It agreed with the conclusion of the standards panel and accordingly dismissed the application for review.

Introduction

1. The applicant is a member of the council of the local government of the Shire of Busselton.  On 2 October 2008, she was ordered by the Local Government Standards Panel (standards panel) to be publicly censured and to publicly apologise to Mr Andrew Macnish, the Shire's Executive Officer, and Mr William Murray Mitchell, a member of a group known as the Smiths Beach Action Group.  The orders had been made by the respondent pursuant to s 5.110(6)(b) and s 5.110(6)(c) of the Local Government Act 1995