Ryan and Local Government Standards Panel
[2009] WASAT 154
•13 AUGUST 2009
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
RespondentATTORNEY 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
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.
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.
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
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 (WA) (LG Act).
Ms Ryan seeks a review of the respondent's decision by the Tribunal.
The decision of the standards panel concerned a question without notice posed by Cr Ryan at an ordinary meeting of the council on 14 November 2007. At that meeting, Cr Ryan said:
In its report of the outcome of the CCC investigation into the Smiths Beach Enquiry, the Commissioner stated in part:
'The acceptance of the invitation and attendance by Dr Cox to a private lunch, when he knew the agenda for discussion and knew (or should have known) that the Canal Rocks Pty Ltd SEA was before him and his agency, constituted the performance of functions as public officer in a manner that was not impartial. The conduct could constitute a serious breach of the Public Sector Code of Ethics in that there was a failure to act with integrity in the performance of official duties. This conduct constitutes misconduct pursuant to sub-paragraphs 4(d)(ii) and (vi) of the CCC Act.'
Ex Councillor David Hunt, also a member of the Smiths Beach Action Group[,] wrote in the newspaper today 'Codes of Conduct in public arenas demand a very high standards of behaviour and a recognition of public perceptions of behaviour of public officers'.
I request that the CEO provide answers to the Council (in writing and before the close of business on Friday, 16 November, 2007) in response to the following questions arising from his meeting with a lobbyist who is a prominent member of the Smiths Beach Action Group on the morning of 2 November at a café in Busselton.
1.Was he on duty at the time of the meeting and, if so, what was the purpose of the meeting? If not, what was the nature of leave and had the leave been approved by the Shire President?
2.Who paid for the refreshments?
3.Did the CEO declare the meeting to anyone else or make note on his file?
4.Given the recent finds of the CCC in relation to public officers meeting with lobbyists (both official and unofficial) does the CEO consider it appropriate that the meeting took place in a place other than the Shire offices?
5.Is there the potential that this meeting has compromised the Council's handling of matters involved [sic] the Smiths Beach Action Group?
The 'lobbyist' referred to by Cr Ryan in her question was Mr Mitchell. The report referred to in the question was the report of the Corruption and Crime Commission entitled 'Report on the Investigation of Alleged Public Sector Misconduct Linked to the Smiths Beach Development at Yallingup, 5 October 2007' (the CCC report).
The standards panel found that, by asking the questions in the manner in which she did, Cr Ryan breached standing order 20.2 of the Shire of Busselton's Standing Orders Local Law 2004 (the standing orders), and thus committed a minor breach for the purposes of Pt 5, Division 9 of the LG Act. The standards panel also concluded that Cr Ryan had breached sub-regulation 7(1) of the Local Government (Rules of Conduct) Regulations 2007 (WA) (LG (RC) Regulations), in that she had made improper use of her office as a council member to cause detriment to another person.
Relevant statutory provisions
Regulation 4 of the LG (RC) Regulations provides:
4. Contravention of certain local laws
(1)In this regulation -
local law as to conduct means a local law relating to conduct of people at council or committee meetings.
(2)The contravention of a local law as to conduct is a minor breach for the purposes of section 5.105(1)(b) of the Act.
The standing orders (which are a local law as to conduct for the purposes of reg 4 of the LG (RC) Regulations) permit councillors to ask questions relating to the business of the local government as part of an agenda item entitled 'Questions From Members Without Notice' at an ordinary meeting of the council. Standing order 20.2 of the standing orders provides:
A member shall not comment adversely upon the character or actions of another member or employee, or be intentionally disrespectful in any way to another member or employee other than through an appropriate agenda item, the discussion for which is closed to members of the public, or in an authorised grievance meeting.
Section 5.104 of the LG Act enables regulations to be made prescribing rules of conduct for council members.
Regulation 7(1) of the LG (RC) Regulations (being regulations made under s 5.104 of the LG Act) provides:
7.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.
Section 5.105(1) of the LG Act provides:
(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.
The standard of proof in relation to findings of a breach is that it is more likely that the breach occurred than that it did not occur - s 5.106 of the LG Act. Section 5.107 to s 5.110 of the LG Act set out the procedure for dealing with alleged minor breaches by council members including the role of the respondent in determining whether or not a minor breach has occurred.
Section 5.110(6) provides that the standards panel may deal with a minor breach 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).
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.
The Shire of Busselton has adopted a Code of Conduct pursuant to s 5.103(1). It relevantly provides:
3.1Personal behaviour
(a)Members ... shall
(i)act, and be seen to act, properly and in accordance with the requirements of the law and the terms of the Code; ...
(ii)perform their duties impartially and in the best interests of their communities, uninfluenced by fear or favour;
(iii)act in good faith (ie honestly, for the proper purpose, and without exceeding their powers) in the interests of the Council and the community;
(iv)deal with each other in an open, honest and frank manner and in particular will not initiate or participate in activities that denigrate the personality or performance of others;
(v)make no allegations which are improper or derogatory and refrain from any form of conduct, in the performance of their official or professional duties, which may cause any reasonable persons unwarranted offence or embarrassment; and
(vi)always act in accordance with their obligation of fidelity to their Council.
I note that a breach of the Code of Conduct is not a minor breach for the purposes of s 5.105(1) of the LG Act.
Breach of standing order 20.2
A breach of the standing orders is a minor breach for the purposes of s 5.105(1)(b) by virtue of reg 4 of the LG Regulations.
The standards panel concluded that a breach of standing order 20.2 had occurred by reason of the juxtaposition of the reference to the CCC report with the five questions concerning the conduct of the CEO which then followed. The standards panel concluded that that juxtaposition raised an implication that the CEO had behaved similarly to the person referred to in the quotation from the CCC report and that therefore:
(a)the CEO's conduct in participating in the Dome café meeting constituted the performance of functions as a public officer in a manner that was not impartial;
(b)the CEO had failed to act with integrity in the performance of his official duties; and
(c)the CEO's conduct constituted misconduct as defined by s 4 of the Corruption and Crime Commission Act 2003 (WA).
The applicant contends that standing order 20.2 was not breached because the questions, including the preface to the questions, did not constitute a 'comment' which was adverse or intentionally disrespectful. Rather, the applicant contends that:
It may be said about the manner in which the questions were asked, that:
(a)it was robust and probing;
(b)it was pointed;
(c)the CEO would not have liked the question;
(d)it was aimed at potentially unsatisfactory conduct by the CEO; and
(e)it may have been possible to have 'tackled' the issue differently,
but none of these factors constitutes the questions, or their framing, as a 'comment'. Indeed, it may properly be said that the applicant in fact made no comment.
The standards panel considered that, had Cr Ryan only asked the five questions, through the presiding person, there would have been nothing untoward in her conduct. It was, however, the preface to the questions which carried the implication of some form of inappropriate or improper conduct on the part of the CEO. I agree with the construction placed on the words by the standards panel. There can be no other explanation for the reference to the CCC report than that it was intended to suggest that the meeting between the CEO and Mr Mitchell was susceptible to the same criticism as made by the CCC in relation to the 'private lunch' to which it referred. Cr Ryan's own submission that 'the CEO would not have liked the questions' and that they 'may have made the CEO somewhat uncomfortable' embodies a recognition that the questions carried with them at least a suggestion of impropriety.
In my view, the inevitable implication to be drawn from the juxtaposition of the reference to the CCC report with the questions does amount to a 'comment' for the purposes of standing order 20.2.
I was referred to the definition of 'comment' in the Macquarie Dictionary (Macquarie, Sydney, 2nd Ed, 1991) being 'a remark, observation, or criticism'. In substance, the thrust of the words used by Cr Ryan was to criticise the CEO and Mr Mitchell by suggesting some impropriety in the meeting between them. That is sufficient to amount to a breach of standing order 20.2.
Breach of reg 7(1)(b)
The standards panel also found that the applicant had breached reg 7(1)(b) of the LG Regulations by making improper use of her office as a council member to cause detriment to other persons.
Cr Ryan contends that her questions were neither improper nor caused detriment to any person.
The meaning of the expression 'improper use of (a person's) position' was considered by the High Court in R v Byrnes (1995) 183 CLR 501 at 513 - 515. In a joint judgment of four Justices (at 514 - 515) it was said that the expression calls for an objective test of impropriety and that:
Impropriety does not depend on alleged offender's consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and circumstances of the case.
The duties, powers and authority of councillors of the Shire of Busselton are found in the Code of Conduct and the standing orders.
The standards panel also found that Cr Ryan breached certain provisions of the Code of Conduct including cl 3.1(a), although it did not give any explanation as to how it reached that conclusion. For my part, I would agree that the questions including the relevance to the CCC report amounted in substance to a derogatory allegation, or conduct which may cause unwarranted offence, so as to amount to a breach of Code of Conduct, cl 3.1(a)(v). I do not share the standards panel view that the questions amounted to a breach of cl 3.2 (Honesty and Integrity) or cl 4.4 (Conflict Resolution). That conclusion does not, however, affect the conclusion as to whether Cr Ryan breached cl 7.1(b).
Having found that Cr Ryan breached the standard or conduct prescribed in standing order 20.2, and cl 3.1(a)(v) of the Code of Conduct it follows that she has made improper use of her position as a councillor within the meaning of that expression in reg 7(1)(b) of the LG Regulations.
The applicant also contends that her conduct did not cause detriment. In that respect, the panel said the following:
21.For regulation 7(1)(b) to be breached, it is not necessary that a detriment has been actually suffered, as it is sufficient that the council member had the intention of causing a detriment (Chew v R (1992 CLR 626). Moreover, the test for impropriety being objective, it is not a requirement for the existence of impropriety that there be conscious wrongdoing (Chew, at 647; R v Byrnes at 514 - 5).
22.The Panel notes that, in considering the meaning of the term "detriment" in regulation 7(1)(b), the Macquarie Dictionary (2nd ed) defines:
(a)the noun "detriment" as loss, damage, or injury" and "a cause of loss or damage";
(b)the noun "loss", relevantly, as "detriment or disadvantage from failure to keep, have or get";
(c) the noun "damage" as "injury or harm that impairs value or usefulness";
(d)the noun "harm" as "injury; damage; hurt" and "moral injury; evil; wrong"; and
(e)the noun "disadvantage", relevantly, as "any unfavourable circumstance or condition" and "injury to interest, reputation, credit, profit etc".
23.In the Panel's view, the term "detriment" is to be constructed widely, and includes a financial or a non-financial loss, damage, or injury, of any state, circumstance, opportunity or means specially unfavourable. Accordingly, "detriment" may include a tendency for others to think less favourably of a person, humiliation, denigration, intimidation, harassment, discrimination, disadvantage, adverse treatment, and dismissal from, or prejudice in, employment.
I agree with the observations of the standards panel set out above.
In her statement of issues, facts and contentions filed in support of her application, Cr Ryan contends that the questions were designed to hold the CEO accountable, and she acknowledges that they may have made the CEO somewhat uncomfortable. It is clear that the applicant was conscious of the implication contained in her questions. That implication, which is clearly potentially damaging to the reputations of both the CEO and Mr Mitchell do amount to detriment for the purposes of reg 7(1)(b) of the LG Regulations.
In my view, the standards committee was correct in its conclusion that Cr Ryan committed a breach of reg 7(1)(b).
Procedural fairness
In her application lodged to initiate these proceedings, Cr Ryan made certain assertions concerning procedural fairness. Those assertions were not pursued by her counsel at the hearing, and I take it that they are not pursued. Suffice to say, however, that given that the proceedings before this Tribunal are by way of a hearing de novo, questions as to the procedure followed by the standards panel in reaching this position do no fall for determination save, perhaps, to the extent that they may somehow inform the merits of the matter. In this case, the complaints set out in the applications have no bearing on the arguments advanced concerning the merits of the allegation against Cr Ryan. In any event, there is nothing to indicate that the processes of the standards panel were not in accordance with the requirements of procedural fairness.
Conclusion
The challenge to the standards panel's decision was as to the merits of the decision, and no challenge was made to the penalty imposed if the decision of the standards panel were to be affirmed. For the foregoing reasons, the decision of the standards panel should be affirmed, and the application for review dismissed.
Orders
1.The decision of the standards panel the subject of the review is affirmed.
2.The application for review is dismissed.
I certify that this and the preceding [36] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J A CHANEY, PRESIDENT
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