Scaffidi v Chief Executive Officer, Department of Local Government and Communities - [2017] WASCA 222

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: SCAFFIDI -v- CHIEF EXECUTIVE OFFICER, DEPARTMENT OF LOCAL GOVERNMENT AND COMMUNITIES [2017] WASCA 222

CORAM: BUSS P
MITCHELL JA
BEECH JA

HEARD: 8 NOVEMBER 2017

DELIVERED : 1 DECEMBER 2017

FILE NO/S: CACV 57 of 2017
CACV 90 of 2017

BETWEEN: LISA MICHELLE SCAFFIDI
Appellant
AND
CHIEF EXECUTIVE OFFICER, DEPARTMENT OF LOCAL GOVERNMENT AND COMMUNITIES
Respondent

ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram :JUSTICE J C CURTHOYS (PRESIDENT)

MS C WALLACE (SENIOR MEMBER)
MS L EDDY (MEMBER)

Citation :CHIEF EXECUTIVE OFFICER, DEPARTMENT OF LOCAL GOVERNMENT AND COMMUNITIES and SCAFFIDI [2017] WASAT 67
File No :DR 212 of 2016

Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram :JUSTICE J C CURTHOYS (PRESIDENT)
MS C WALLACE (SENIOR MEMBER)
MS L EDDY (MEMBER)

Citation :CHIEF EXECUTIVE OFFICER, DEPARTMENT OF LOCAL GOVERNMENT AND COMMUNITIES and SCAFFIDI [2017] WASAT 67 (S)
File No :DR 212 of 2016

Catchwords:

Statutory interpretation - Local government - Requirement to disclose gifts and contributions to travel in annual returns - Whether accommodation provided by third parties requesting council member to attend meetings and conferences is a 'gift' - Whether reference to 'consideration in money's worth' is only to something which can be bought or sold in an open market at an objective and predictable price - Whether entitlement to reimbursement is irrelevant to determination of existence of a 'financial benefit' - Whether reference to an 'occupation' is only to activities from which the relevant person earns an income and involves more than periodic attendances - Whether State Administrative Tribunal erred in law in failing to provide adequate reasons - Whether State Administrative Tribunal erred in law in finding the appellant committed a serious breach each time the appellant did not include in her annual returns gifts and contributions to travel provided by a third party

Legislation:

Local Government Act 1995 (WA), s 5.78, s 5.82, s 5.83, s 5.105, s 5.116, s 5.117
State Administrative Tribunal Act 2004 (WA), s 105

Result:

CACV 57 of 2017: Appeal allowed
CACV 90 of 2017: Leave to appeal refused

Category: A

Representation:

Counsel:

Appellant: Mr S Penglis
Respondent: Mr G T W Tannin SC & Mr D E Leigh

Solicitors:

Appellant: Hotchkin Hanly Lawyers
Respondent: State Solicitor for Western Australia

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

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Archibald v Howe Pty Ltd v Commissioner of Stamp Duties (NSW) (1948) 77 CLR 143
Australian Woollen Mills Pty Ltd v The Commonwealth (1954) 92 CLR 424
Carr v The State of Western Australia [2007] HCA 47; (2007) 232 CLR 138
Centex Australasia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79
CEO, Department of Local Government and Communities and Scaffidi [2017] WASAT 67
CEO, Department of Local Government and Communities and Scaffidi [2017] WASAT 67 (S)
Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378
Commissioner for Consumer Affairs v Carey [2014] WASCA 7
Commissioner of State Revenue (NSW) v Dick Smith Electronics Holdings Pty Ltd [2005] HCA 3; (2005) 221 CLR 496
Commissioner of State Revenue v WestNet Rail Holdings No 1 Pty Ltd [2013] WASCA 110; (2013) 45 WAR 140
Construction Forestry Mining and Energy Union (CFMEU) v Mammoet Australia Pty Ltd [2013] HCA 36; (2013) 248 CLR 619
Director of Public Prosecutions (Vic) v Le [2007] HCA 52; (2007) 232 CLR 562
Epic Energy (Pilbara Pipeline) Pty Ltd v Commissioner of State Revenue [2011] WASCA 228; (2011) 43 WAR 186
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503
Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336
Finch v Commissioner of Stamp Duties [1929] AC 427
Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2017] WASCA 153
Ibester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135
Kelly v The Queen [2004] HCA; (2004) 218 CLR 216
Legal Profession Complaints Committee v Rayney [2017] WASCA 78; (2017) 51 WAR 142
McGain v Federal Commissioner of Taxation (1966) 116 CLR 172
Medical Board v Woollard [2017] WASCA 64; (2017) 51 WAR 32
Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194
Minister for Immigration v SZSSJ [2016] HCA 29; (2016) 259 CLR 180
Mount Lawley v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
Ord Forrest Pty Ltd v Federal Commissioner of Taxation (1974) 130 CLR 124
Osland v Secretary to the Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Plaintiff S4/2014 v Minister for Immigration [2014] HCA 34; (2014) 253 CLR 219
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Robertson v Commissioner of Inland Revenue (1964) NZLR 484
Roxborough v Rothmans of Pall Mall Australia Ltd [2001] HCA 68; (2001) 208 CLR 516
Zheng v Cai [2009] HCA 52; (2009) 239 CLR 446

Table of contents

Introduction
Statutory context

Constitution of local governments and councils
Participation and disclosure at council and committee meetings
Remuneration and reimbursement of members
Disclosure of financial interests in returns
Register of financial interests
Allegations by the respondent
Purpose of disclosure regime

Grounds of appeal

Ground 1: Insufficient reasons for decision
Ground 2: The Australian Press Council 'gifts'
Ground 3: APC 'contributions to travel'
Ground 4: Accommodation provided by conference organisers
Ground 5: Visits to sister cities
Ground 6: World Energy Cities Partnership
Ground 7: Separate breaches

Tribunal's factual findings and approach

Ground 2 breaches: Accommodation provided by the APC

Facts found by the Tribunal
Tribunal's approach

Ground 3 breaches: APC contributions to travel

Facts found by the Tribunal
Tribunal's approach

Ground 4 breaches: Accommodation provided by conference organisers

Facts found by the Tribunal
Tribunal's approach

Ground 5 breaches: Visits to sister cities

Facts found by the Tribunal
Tribunal's approach

Ground 6 breach: World Energy Cities Partnership

Facts found by the Tribunal
Tribunal's approach

Grounds 2, 4 and 5: Nature of 'consideration'

Elements of the definition of a 'gift'
Financial benefit in this case
Tribunal's approach to consideration
Common question of law identified
Principles of statutory construction
Legal meanings attributed to the term 'consideration'

Construction of s 5.82(4) of the Act
The Tribunal erred in its construction of the definition of 'gift'
Consideration in money's worth was provided in this case
Conclusion as to grounds 2, 4 and 5

Ground 5: Significance of an entitlement to reimbursement
Ground 6: The WECP payments
Ground 3: Contributions to travel by APC
Ground 7: Separate breaches
Ground 1: Adequacy of reasons
Disposition of the appeals

Orders

CACV 57 of 2017 (Breach appeal)
CACV 90 of 2017 (Penalty appeal)

JUDGMENT OF THE COURT:

Introduction

The appellant has been a councillor for the City of Perth since 2000 and the Lord Mayor of the City of Perth since 2007. She was most recently re‑elected to the office of Lord Mayor on 17 October 2015, for a term of 4 years.
The Local Government Act 1995 (WA) (Act) required the appellant to lodge an annual return with the CEO of the City by 31 August in each year. Annual returns are contained in a publicly accessible register of financial interests. Failure to lodge the annual return or comply with disclosure requirements in various specified sections was an offence with a maximum penalty of imprisonment for 2 years. The Act defined such a failure to be a 'serious breach'.
Section 5.82(1) of the Act required the appellant to disclose in an annual return 'the description and the amount of each gift' she received during the return period, and the name and address of each person who made the gift.
Section 5.83(1) of the Act required the appellant to disclose 'the description and the amount of each financial or other contribution that has been made to any travel' she undertook at any time during the return period. However, s 5.83(2)(c) of the Act created an exception to that disclosure requirement where the contribution was made in the ordinary course of an occupation of the appellant which was not related to her duties as Lord Mayor.
The respondent made allegations, to the State Administrative Tribunal, that the appellant had committed 45 serious breaches. Individual allegations were referred to as 'breach' numbers by the Tribunal and the parties in this appeal. We shall do likewise, while recognising that what is being referred to is an allegation of a serious breach.
Breach 1 alleged a failure by the appellant to lodge her 2008/2009 annual return by 31 August 2009. The appellant admitted that breach.
Breaches 2 ‑ 29 alleged a failure to disclose gifts in respect of each return period from 2007/2008 to 2013/2014, other than 2009/2010. In the Tribunal, the appellant admitted three breaches which involved failing to disclose the following gifts:
(1)a 'four nights' accommodation package' at the Beijing Olympic Games in August 2008, provided by BHP Billiton (breach 5);
(2)a three night accommodation package at Cable Beach in August 2008, provided by Hawaiian Property Investments Pty Ltd (breach 6); and
(3)a hospitality package for the Leeuwin concert and two nights' accommodation at the Grand Mercure Busselton in March 2009, provided by BHP Billiton (breach 10).
The appellant otherwise denied the breaches involving a failure to disclose gifts.
Breaches 30 ‑ 45 alleged that the appellant failed to disclose contributions to travel in respect of each return period from 2007/2008 to 2013/2014. The appellant admitted breach 34, which concerned a contribution by BHP Billiton towards business class return flights to the Beijing Olympic Games for the appellant and her husband. The appellant denied the other breaches involving contributions to travel.
The Tribunal heard the respondent's allegations on 7 and 8 February 2017. On 9 May 2017, the Tribunal made an order that it was satisfied that the appellant had committed all 45 serious breaches of the Act alleged by the respondent. The Tribunal published written reasons for that decision.[1] Appeal CACV 57 of 2017 is the appellant's appeal against the orders made in the Breach decision. The appellant challenges some, but not all, of the findings that she committed serious breaches.
[1] CEO, Department of Local Government and Communities and Scaffidi [2017] WASAT 67 (Breach decision).
On 14 and 21 June 2017, the Tribunal conducted a penalty hearing in relation to the serious breaches. On 4 September 2017, the Tribunal made an order that the appellant is disqualified from holding office as a member of council for 18 months commencing at midnight on Thursday, 7 September 2017. The Tribunal published written reasons for that decision.[2] CACV 90 of 2017 is the appellant's appeal against the orders made in the Penalty decision.
[2] CEO, Department of Local Government and Communities and Scaffidi [2017] WASAT 67 (S) (Penalty decision).
The effect of the Tribunal's orders, if not stayed, would have been that the office of Lord Mayor of the City of Perth became vacant at midnight on 7 September 2017.[3] On 7 September 2017, the court stayed the Tribunal's order disqualifying the appellant from holding office as a councillor until the determination of the appeals, or further order.
[3] Under s 2.32(da) of the Act.
The appellant's rights of appeal derive from s 105 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). An appeal only lies, with leave, on a question of law.[4] This court is confined to considering whether the Tribunal's decision involves an error of law and, if satisfied that it does, to making consequential orders consistent with that limited function.
[4] As the Act is not a 'relevant Act' as defined by s 105(14) of the SAT Act, s 105(13) of the SAT Act, which allows for an appeal to be brought on any ground in certain circumstances, does not apply.
The grounds of appeal against the orders made in the Breach decision concern two categories of 'gifts' which the appellant failed to disclose. The first category involves the provision of accommodation by the Australian Press Council (APC). The appellant was a member of the APC who was required to attend meetings of the APC. The APC provided accommodation so that the appellant could attend and participate in meetings of the APC in cities other than Perth. The second category involved the provision of accommodation by the organisers of conferences in cities other than Perth at which the appellant had been invited to speak or otherwise participate. The appellant has established that the Tribunal erred in law in finding that the provision of this accommodation by the APC and the conference organisers was a 'gift'.
The other challenged findings of breach concern the contributions which the APC made to the appellant's travel so that she could attend its meetings. The appellant has established that the Tribunal erred in law in finding that these contributions did not fall within the exception to the disclosure requirements in s 5.83(2)(c) of the Act.
The success of the appellant's appeal against the orders made in the Breach decision renders her appeal against the orders made in the Penalty decision redundant.
For the reasons which follow:
(1)the appellant's appeal against the orders made in the Breach decision must be allowed;
(2)the orders made by the Tribunal in the Breach decision and the Penalty decision must be set aside; and
(3) the matter must be remitted to a differently constituted Tribunal for a determination of the penalty orders which should be made in respect of the 19 serious breaches which were not challenged in the Breach appeal.

Statutory context

The Act has been amended since the events which are the subject of this appeal, including by providing for disclosure of gifts and contributions to travel continuously, rather than in annual returns. What follows is a summary of the provisions of the Act as they stood at the time of the relevant events.

Constitution of local governments and councils

The Act provides for the establishment of local governments with elected councils as their governing body.[5] The offices on the council of the local government of a city or town are those of the mayor, the deputy mayor and the councillors.[6] The council governs the local government's affairs and is responsible for the performance of the local government's functions. Its role includes overseeing the allocation of the local government's finances and resources, and determining the local government's policies.[7] A local government may also establish committees of persons, who often include council members, to assist the council and to exercise delegated powers and functions.[8] Decisions of councils and committees are made by a vote at the relevant meeting.[9]
[5] Section 2.5 and s 2.6(1) of the Act.
[6] Section 2.6(2) of the Act.
[7] Section 2.7 of the Act.
[8] Section 5.8 of the Act.
[9] Section 5.20 and s 5.21 of the Act.
The general function of a local government is to provide for the good government of persons in its district.[10] It has functions conferred both by the Act and other written laws. These include the legislative power to make local laws,[11] and the executive power to administer those laws and provide services and facilities.[12] Local governments are also charged with the preparation and amendment of local planning schemes under the Planning and Development Act 2005 (WA),[13] and the administration of those schemes. Those local schemes make provision for the improvement, development and use of land in the areas to which they apply.[14]
[10] Section 3.1 of the Act.
[11] Section 3.5 of the Act.
[12] Section 3.18 of the Act.
[13] Section 72 and s 75 of the Planning and Development Act.
[14] Section 69 of the Planning and Development Act.
The exercise of functions by a local government, particularly in relation to the zoning and development of land under local planning schemes, can have a significant financial impact on members of the community who own or seek to develop land in the local government's district. Many local governments are small organisations operating in small communities, a circumstance which can increase the opportunities for persons financially affected by local government decisions to seek to influence the decision‑makers by both proper and improper means.
A candidate for councillor or mayor must be an elector of the relevant local government district.[15] This requires the candidate to be a resident of, or owner or occupier of rateable property in, the district.[16] These requirements increase the prospect that council's decisions will have a personal impact on the financial position of the council member.

Participation and disclosure at council and committee meetings

[15] Section 4.48 of the Act.

[16] Section 4.29 and s 4.30 of the Act.

In this context, s 5.65 of the Act requires a council member who has an interest in any matter to be discussed at a council or committee meeting that will be attended by the member to disclose the nature of the interest. The disclosure must be made in a written notice given to the CEO of the local government before the meeting, or at the meeting immediately before the matter is discussed. Under s 5.67, a member who makes such a disclosure must not preside at the part of the meeting relating to the matter. Also, the member must not participate in, or be present during, any discussion or decision making procedure relating to the matter. Limited exceptions to this requirement in s 5.67 are contained in s 5.68 and 5.69 of the Act. Failure to comply with these requirements is an offence punishable by a maximum penalty of 2 years' imprisonment. The disclosure is to be recorded in the minutes of the meeting relating to the disclosure.[17]
[17] Section 5.73 of the Act.
Under s 5.60 of the Act, a relevant person (which includes a member of council[18]) has an interest in a matter if either the member or a person with whom the member is closely associated has either a direct or indirect financial interest in the matter or a 'proximity interest' in the matter. For these purposes:[19]
a person has a financial interest in a matter if it is reasonable to expect that the matter will, if dealt with by the local government, or an employee or committee of the local government or member of the council of the local government, in a particular way, result in a financial gain, loss, benefit or detriment for the person.
In general terms, a person has a 'proximity interest' in matters which concern proposed development on, or changes to planning provision for, land that adjoins the person's land.[20]
[18] Section 5.59 of the Act.
[19] Section 5.60A of the Act.
[20] Section 5.60B of the Act.
Section 5.63 of the Act provides for certain exceptions to the above disclosure requirements. It does so in a manner which recognises that a person will have a financial interest where the valuation of land in which the person has an interest may be affected by planning proposals for that land or adjoining land.[21]
[21] See, in particular, s 5.63(3) of the Act.
One category of person who is 'closely associated' with a council member is a person who, since the member was last elected, has given the member a gift, or made a contribution to travel undertaken by the member, which s 5.82 or s 5.83 requires the member to disclose.[22]

Remuneration and reimbursement of members

[22] Section 5.62(1)(eb) of the Act.

Pt 5 div 8 of the Act regulates payments and gifts by a local government to members of council. Sections 5.98(2) ‑ (4) entitle a council member who incurs an expense of a kind prescribed to be reimbursed for the expense to an extent which is, in general terms, defined by the local government. Section 5.98(5) provides that a mayor is additionally entitled to be paid an annual local government allowance determined for mayors. A local government may also decide to pay an annual allowance determined under the Salaries and Allowances Act 1975 (WA) instead of reimbursing members for particular types of expenses.[23] Section 5.98(6) prohibits a local government from making a payment to, or reimbursing an expense of, a person in their capacity as a council member or mayor unless the payment is in accordance with pt 5 div 8.
[23] Section 5.99A of the Act.
Section 5.100A provides that a local government cannot give a 'gift' to a council member unless the gift is given in prescribed circumstances and the value of the gift is less than a prescribed amount. The Act does not define the term 'gift', as used in s 5.100A.

Disclosure of financial interests in returns

Pt 5 div 6 subdiv 2 of the Act provided for the disclosure of financial interests by relevant persons (which include council members).[24]
[24] Section 5.74 of the Act.
A council member was required to lodge with the CEO a primary return within 3 months of the day on which he or she made a declaration before acting in the office.[25] Subsequently, the member had to lodge an annual return by 31 August in each year.[26]
[25] Section 5.75 read with s 5.74(1) (definition of 'start day') and s 2.29 of the Act.
[26] Section 5.76 of the Act.
Section 5.78 of the Act provided:
(1)A relevant person must comply with the requirements of sections 5.79, 5.80, 5.81, 5.82, 5.83, 5.84, 5.85 and 5.86 in relation to the disclosure of information in a return.
Penalty:$10 000 or imprisonment for 2 years.
(2)Nothing in this Subdivision requires a relevant person to -
(a)include in a return any information which has been disclosed in a previous return made by the relevant person; or
(b)disclose the actual value, amount or extent of any asset, income, interest, debt or disposition referred to in section 5.79, 5.80, 5.81, 5.84, 5.85 or 5.86.
Subject to certain exceptions, s 5.79 of the Act required a council member to disclose the address of each parcel of real property in the district or in an adjoining district in which the member had an interest. Section 5.80(1)(b) required a member to disclose in an annual return each source from which income was received, or was reasonably expected to be received, including:[27]
[27] Section 5.80(2) of the Act.
(a)in relation to income from an occupation of the person -
(i)a description of the occupation; and
(ii)if the person is employed or the holder of an office, the name and address of his or her employer or a description of the office; and
(iii)if the person has entered into a partnership with other persons, the name (if any) under which the partnership is conducted;
and
(b)in relation to income from a trust, the name and address of the settlor and the trustee; and
(c)in relation to any other income, a description sufficient to identify the person from whom, or the circumstances in which, the income was, or is reasonably expected to be, received.
Section 5.81 required a member to disclose the name and address of the settlor and the trustee of any trust in which the person held a beneficial interest, or of any discretionary trust of which the person was a trustee or object.
Section 5.82 of the Act dealt with the disclosure of gifts in the following terms:
(1)A relevant person is to disclose in an annual return -
(a)the description and the amount of each gift received by the person at any time during the return period; and
(b)the name and address of the person who made each gift to which paragraph (a) applies.
(2)Nothing in this Subdivision requires a relevant person to disclose in a return a gift received by the person if -
(a)the amount of the gift did not exceed the prescribed amount unless -
(i)the gift was one of 2 or more gifts made by one person at any time during the return period; and
(ii)the sum of those 2 or more gifts exceeded the prescribed amount;
or
(b)the donor was a relative of the person.
(3)For the purposes of this section, the amount of a gift comprising property, other than money, or the conferral of a financial benefit is to be treated as being an amount equal to the value of the property or the financial benefit at the time the gift was made.
(4)In this section:
gift means any disposition of property, or the conferral of any other financial benefit, made by one person in favour of another otherwise than by will (whether with or without an instrument in writing), without consideration in money or money's worth passing from the person in whose favour it is made to the other, or with such consideration so passing if the consideration is not fully adequate, but does not include any financial or other contribution to travel.
Section 5.83(1) of the Act required a member to disclose in an annual return:
(a)the description and the amount of each financial or other contribution that has been made to any travel undertaken by the person at any time during the return period; and
(b)the name and address of the person who made each contribution to which paragraph (a) applies.
Section 5.83(2) created a number of exceptions to this requirement, including where:
(c)the contribution was made in the ordinary course of an occupation of the person which is not related to his or her duties as a council member or employee; or
(d)the amount of the contribution did not exceed the prescribed amount unless:
(i)the contribution was one of 2 or more contributions made by one person at any time during the return period; and
(ii)the sum of those 2 or more contributions exceeded the prescribed amount[.]
Section 5.83(4) defined 'travel' to include accommodation incidental to a journey. In the Tribunal it was common ground that it is only where accommodation is used in the course of a journey from one place to another (such as during a stopover) that it is incidental to a journey.[28] On appeal, neither party suggested that the accommodation which is the subject of the grounds of the appeal was incidental to a journey for the purpose of s 5.83 of the Act.
[28] Breach decision [12].
Section 5.84 of the Act required a council member to disclose the name of each corporation of which he or she was a member or in which he or she otherwise had an interest or held any position (whether remunerated or not). Section 5.85 required a council member to disclose the name and address of each person to whom he or she was liable to pay any debt, subject to specified exceptions. Section 5.86 of the Act required disclosure of certain dispositions of real property in the district or in an adjoining district by which the council member retained the use and benefit of, or the right to re‑acquire, the property.
In annual returns, the council member was required to disclose events which occurred in the 'return period', which was the period of 12 months ending on 30 June of the year in which the annual return was lodged.[29]
[29] Section 5.74(1) of the Act (definition of 'return period').
The prescribed amount (below which disclosure was not required) for gifts and contributions to travel was $200.[30]
[30] Regulation 25 and reg 26 of the Local Government (Administration) Regulations 1996 (WA).
Section 5.87 of the Act provided for a member, at his or her discretion, to make voluntary disclosure of 'any direct or indirect benefits, advantages or liabilities, whether financial or not' which:
the person considers might appear to raise a conflict between the person's private interests and the person's duty as a council member or a designated employee or which he or she otherwise desires to disclose.

Register of financial interests

Section 5.88 of the Act required the CEO of a local government to keep a register of financial interests, the contents of which include returns lodged under s 5.75 and s 5.76, and disclosures made under s 5.65 of the Act.
Section 5.89 of the Act made it an offence for a member making a disclosure under s 5.65 or lodging a return under s 5.75 or s 5.76 to provide information that the person knows to be false or misleading in a material particular, or likely to deceive in a material way.
Section 5.94(b) of the Act provided for any person to attend the office of a local government to inspect, free of charge, any register of financial interests.

Allegations by the respondent

Section 5.105(3) of the Act relevantly provides that a council member commits a 'serious breach' when he or she commits any offence under a written law, other than a local law made under the Act, of which it is an element that the offender is a council member. Section 5.116(2) of the Act authorises the respondent to make an allegation to the Tribunal that a council member has committed a serious breach.
Section 5.117(1) of the Act provides that if, on such an allegation, the Tribunal finds that a person committed a serious breach, then the Tribunal may make orders imposing one or more of a series of sanctions. The available sanctions were public censure, an order for a public apology, a requirement to undertake training, suspension of up to 6 months and/or disqualification from holding office as a member of a council for up to 5 years. Under s 5.117(2), the Tribunal may make a 'suspended order' in relation to suspension or disqualification that:
(a)only takes effect if, on finding that the person subject to the order has not complied with a condition specified in the order, the State Administrative Tribunal directs under subsection (7) that the order take effect; and
(b)lapses if it has not taken effect within a period specified in the order[.]

Purpose of disclosure regime

The purpose of the above provisions is evident from their text, and is directed to the objects specified in s 1.3(2) of the Act of resulting in 'better decision‑making by local governments' and 'greater accountability of local governments to their communities'.
In broad summary, the objective legislative intention is to prevent council members from making decisions in matters in which they, or closely associated persons, have an interest which might, or might reasonably be apprehended to, divert the member from deciding the matter on its merits. The regime is also designed to deter third parties who may be affected by decisions of council from seeking to influence the decisions by the provision of gifts and contributions to travel to council members by ensuring disclosure of interests and relationships and preventing participation by an affected member.
By requiring disclosure in returns which are available for public inspection, the legislation provides a means for the identification of failures by members to disclose interests at meetings and recuse themselves from consideration of a matter in which they were interested. The disclosure mandated by s 5.82 and s 5.83 also serves to designate persons 'closely associated' with a council member, and to prevent the member's participation in decisions which may affect the financial interests of those associated persons. Importantly for the resolution of this case, the focus of the legislation is on interests and relationships which might influence a council member to decide a matter otherwise than on its merits, or which a fair-minded observer might reasonably apprehend to do so. Contrary to the findings of the Tribunal noted below, the purpose of the regime is not to prevent council members from establishing interests which could improperly influence their decisions. Rather, the Act requires that, where such an interest exists, the council member must disclose the interest and not participate in a decision which could affect that interest. In that respect, the Act's specific express provisions may be seen as an expression of, or closely related to, that aspect of the rules of procedural fairness, otherwise implied in the Act,[31] which is concerned with bias and reasonable apprehension of bias arising from personal interest.[32]
[31] Minister for Immigration v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 [75].
[32] As to which see Ibester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135.

Grounds of appeal

The appellant seeks leave to appeal against the Breach decision on 7 grounds.

Ground 1: Insufficient reasons for decision

Ground 1 complains that the Tribunal erred in law in failing to provide adequate reasons in respect of its findings as to the breaches which are the subject of subsequent grounds.

Ground 2: The Australian Press Council 'gifts'

Ground 2 asserts that the Tribunal erred in law in finding that the appellant committed a serious breach each time she did not disclose accommodation provided by the APC in her annual returns.
This ground relates to breaches 2, 4, 7, 8, 9, 11, 13, 14, 17, 19 and 21. In particular, the appellant submits that the Tribunal erred in law in finding the provision of accommodation by the APC for use by the appellant constituted a 'gift' for the purposes of the Act. The appellant contends that the Tribunal should have found that the said provision of accommodation was not a 'gift' because it:
(1)did not constitute 'the conferral of any financial benefit' upon the appellant; and, or in the alternative;
(2)was not provided without consideration in money's worth passing from the appellant to the APC, and where such consideration was not established to be 'not fully adequate'.

Ground 3: APC 'contributions to travel'

Ground 3 contends that the Tribunal erred in law in finding that the appellant committed a serious breach each time she did not disclose travel provided by the APC in her annual returns. This ground relates to breaches 30, 31 and 41.
The appellant contends that the Tribunal should have found that each contribution was not disclosable because of s 5.83(2)(c) of the Act, on the basis that each contribution was made in the ordinary course of the appellant's 'occupation', being an occupation not related to her duties as a council member.
The appellant contends that the Tribunal ought to have found that her work as a member of the APC was an occupation within the meaning of s 5.83 of the Act notwithstanding that she did not receive an income and it was not undertaken on a daily basis.

Ground 4: Accommodation provided by conference organisers

Ground 4 is expressed to relate to breaches 3, 22 ‑ 26 and 29. In oral submissions, counsel for the appellant indicated that it was also intended to cover breach 18, which was mistakenly included as one of the breaches to which ground 5 relates.[33] We shall treat ground 4, rather than ground 5, as dealing with breach 18. In general terms, these breaches concern the provision of accommodation by conference organisers who invited the appellant to participate in their conferences.
[33] Appeal ts 31.
The appellant alleges that the Tribunal erred in law in finding that the accommodation to which these breaches relate were 'gifts' for the purposes of the Act.
The appellant says that the Tribunal should have found that the provision of accommodation was not a gift because it was not provided without consideration in money's worth passing from the appellant to the party providing the accommodation, where such consideration was not established to be 'not fully adequate'.
The appellant submits that her attendance at events at the request of the organiser, as well as the work she performed, constituted ample consideration for the accommodation that was provided for her use.

Ground 5: Visits to sister cities

Ground 5 relates to breaches 15, 16 and 20, in relation to accommodation provided for conferences in 'sister cities'. The appellant claims to have been entitled to reimbursement for the cost of this accommodation from the City of Perth in any event. As noted above, breach 18 (which is referred to in ground 5) will be treated as relating to ground 4.
Ground 5 contends that the Tribunal erred in law in finding the provision of accommodation, to which breaches 15, 16, and 20 relate, for use by the appellant constituted a 'gift' for the purposes of the Act. The appellant contends that the Tribunal should have found that the provision of accommodation was not a 'gift' because it:
(1)did not constitute 'the conferral of any financial benefit' upon the appellant; and, or in the alternative
(2)was not provided without consideration in money's worth passing from the appellant to the conference organiser, and where such consideration was not established to be 'not fully adequate'.

Ground 6: World Energy Cities Partnership

This ground of appeal relates to breach 28, concerning accommodation provided to the appellant to enable her to attend a meeting of the World Energy Cities Partnership (WECP).
Ground 6 contends that the Tribunal erred in law in finding that a payment to the City of Perth by WECP with respect to one night's accommodation, which the appellant had paid for and for which she was later reimbursed by the City, constituted a gift for the purposes of the Act. The appellant contends that the Tribunal should have found that nothing done by the WECP constituted a gift because there was no conferral of any financial benefit upon the appellant.

Ground 7: Separate breaches

Ground 7 contends that the Tribunal erred in finding that a separate serious breach occurred in respect of each item not included in the appellant's annual returns. She contends that the Tribunal should have found that, on the proper construction of the Act, there was only one serious breach in respect of each annual return.

Tribunal's factual findings and approach

It is convenient to set out the Tribunal's findings of fact and approach by reference to the groups of breaches to which grounds 2 ‑ 6 respectively relate.

Ground 2 breaches: Accommodation provided by the APC

Facts found by the Tribunal

The Tribunal made the following factual findings in relation to the ground 2 breaches.[34]
[34] Breach decision [176], [183] - [213].
The appellant was a public member of the APC between 31 July 2003 and 30 June 2012. The appellant's role on the APC was as a private citizen and did not form part of her duties as Lord Mayor. The appellant's position on the APC was a voluntary position.
As a public member of the APC the appellant was required to, inter alia, consider and deal with complaints and concerns about material in newspapers, magazines and journals, published either in print or on the Internet. This necessitated reading of the materials supplied by the APC (sent ahead of the travel) and attendance at hearings and/or mediations.
This often involved the appellant having to travel, including interstate. When the appellant was required to do so, in accordance with the APC Constitution, the APC paid to or on behalf of the appellant, inter alia, travel (including accommodation) expenses.
Section 19 of the APC Constitution provided that:
Reasonable travelling and subsistence expenses as determined by the Council from time to time shall be paid to Council members and staff attending meetings of the Council (including its subcommittees and working groups) or of the association and in such other circumstances as the Council may determine.
In order to attend meetings of the APC, the APC provided the appellant, with the following accommodation, which she did not disclose in the annual return for the identified period:

Breach No	Date	No of nights	Hotel name	Annual return period
2	11 June 2008	1	Swissotel (Sydney)	2007/2008
4	30 July 2008	1	Rydges (Cronulla)	2008/2009
7	21 October 2008	1	Swissotel (Sydney)	2008/2009
8	3 December 2008	1	Swissotel (Sydney)	2008/2009
9	4 February 2009	1	Swissotel (Sydney)	2008/2009
11	25 March 2009	1	Swissotel (Sydney)	2008/2009
13	7 May 2009	1	Sofitel (Gold Coast)	2008/2009
17	1 December 2010	1	Swissotel (Sydney)	2010/2011
19	14 July 2011	1	Swissotel (Sydney)	2011/2012
21	18 ‑ 20 April 2012	3	Swissotel (Sydney)	2011/2012

In each case, the value of the accommodation exceeded $200.
Also, the APC provided the appellant with $185 (being an amount equivalent to a single night's accommodation at the Mantra on Kent) on 17 June 2009. This amount was paid in order for the appellant to attend a meeting of the APC. This sum of money, and the value of accommodation provided to the appellant on other occasions in the 2008/2009 year, exceeded $200. The appellant's failure to disclose this payment in her 2008/2009 annual return was the subject of breach 14.

Tribunal's approach

The contentious issue in relation to these breaches was whether the provision of accommodation constituted a 'gift' as defined in s 5.82(4) of the Act.
In the case of each relevant breach, the Tribunal recited the agreed facts. It then made a finding that, contrary to s 5.78(1) of the Act, the appellant failed to disclose in the relevant annual return information relating to a gift that was required to be disclosed pursuant to s 5.82 of the Act. The Tribunal identified the information as relating to 'the APC's gift of accommodation' to attend the relevant APC meeting.[35]
[35] Breach decision [185], [187], [190], [193], [196], [199], [202], [205], [208], [211], [213].
The financial benefit which the Tribunal identified in these findings was the provision of accommodation by the APC to the appellant. The benefit found by the Tribunal was not, at least in terms, the payment or reimbursement of the appellant's liability to pay the account of a hotel at which she had stayed. However, the Tribunal had observed in its general discussion of the provisions of the Act that:
The effect of a payment or reimbursement by a third party was to discharge [the appellant's] personal liability as the occupant of the hotel room [88].
In this appeal, it was common ground that the benefit which the appellant received was the provision of accommodation by the APC, rather than the discharge of her liability to pay accommodation costs.[36]
[36] Appeal ts 6 ‑ 7, 44, 47.
Before dealing with individual breaches, the Tribunal accepted the respondent's submission as to the legislative purpose underlying the 'annual returns' regime. That purpose was to ensure that the financial interests of all 'relevant persons' in a local government are disclosed to public scrutiny. That was in turn to ensure that relevant persons, knowing that their financial interests will be available for public scrutiny, take steps to ensure that they do not establish or maintain financial interests that could improperly influence them in the discharge of their duties as a member of a local government (or could be perceived as improperly influencing them in the discharge of those duties). It was also to ensure that the public has confidence that the decisions taken by relevant persons have not been improperly influenced by their financial interests.[37]
[37] Breach decision [71] - [76].
The Tribunal expressed the view that the provisions of Part 5 of the Act are to be construed so as to ensure that the relevant disclosures lead to accountability in substance. The Tribunal considered that a construction which promotes accountability and transparency is to be preferred to one that does not promote those objects.[38]
[38] Breach decision [78].
The Tribunal also indicated that it 'broadly accepted' submissions to the following effect made by the respondent:[39]
(1)Gifts for the purposes of the Act are things which have a financial value which can be precisely calculated. By extension, the gift must be something of a kind that can be readily purchased in some kind of open market.
(2)The consideration contemplated by the Act is not at large. It is limited to consideration 'in money or money's worth'. The Act assumes that whatever is given in consideration will be either money or something which can be readily valued by reference to its price in some kind of open market.
(3)Any consideration provided by a relevant person in return for a gift will not be consideration recognised by the Act if it is not consideration that can be objectively valued in monetary terms. For consideration to be valid it must be of a kind that could be 'bought' or 'sold' in a market, at an objective and predictable price.
(4)The Act limits the circumstances in which the conferral of property or financial benefit will not be a gift to those situations where consideration passes 'from the person in whose favour [the conferral] is made to the other'. That is, if a relevant person is provided with a financial benefit by one person, and provides fully adequate consideration for that benefit to a second person, the relevant person will still be held to have received a gift. This shows that the Act can hold that a relevant person has received a gift even if their financial position is not clearly better off as a result of the receipt of the relevant financial benefit.
[39] Breach decision [82] ‑ [83].
The Tribunal rejected the appellant's submission that the provision of accommodation did not constitute the 'conferral of financial benefit' to the appellant. The Tribunal also rejected the appellant's submission that she had, in any event, provided ample consideration for the provision of accommodation by her preparation for and attendance at the relevant meetings. It did so in the following terms:
The payment of [the appellant's] accommodation conferred a financial benefit on her for the reasons stated above. Preparation for and attendance at APC meetings does not constitute consideration within the meaning of s 5.82 of the [Act] for the reasons stated above [176].
The Tribunal's reference to 'the reasons stated above' is evidently a reference to some or all of the respondent's submissions, outlined above, as broadly accepted by the Tribunal, and the following parts of the Tribunal's earlier reasoning.
The Tribunal considered the meaning of the element of the definition of 'gift' that it was made without consideration or for consideration that was not fully adequate.[40] Its reasoning included the following:
(1)It seems self‑evident that the reason that inadequate consideration is within the definition is so as to prevent a nominal payment, such as a peppercorn, that might constitute consideration in a contractual sense being used as a means to evade the principles of accountability that underpin the Act.[41]
(2)Accountability requires that a meaningful comparison can be made between what might otherwise be a gift and the purported consideration.[42]
(3)This is reinforced by the use of the phrase 'fully adequate'.[43]
(4)Activities commonly undertaken by a Lord Mayor or Councillor of a political nature such as ribbon cutting or the giving of speeches are not in any sense commercial. Consequently it is inappropriate to express or analyse those activities in terms of consideration.[44]
(5)The difficulties of comparing visits to different sister cities illustrates the difficulty of expressing speeches or networks in terms of consideration.[45]
(6)It is simply not possible to ascribe a value to ribbon cutting or speech giving performed by a Lord Mayor or Councillor.[46]
(7)To allow such activities to constitute consideration would fail to ensure accountability.[47]
(8)The difficulties of ascribing any value to activities of that kind were revealed in the appellant's cross‑examination.[48]
[40] Breach decision [89] - [100].
[41] Breach decision [90].
[42] Breach decision [91].
[43] Breach decision [92]
[44] Breach decision [94].
[45] Breach decision [96].
[46] Breach decision [97].
[47] Breach decision [98].
[48] Breach decision [99].
However, some of this reasoning is directed to activities in an official capacity as Lord Mayor and so may not have been relevant to the Tribunal's conclusion as to the APC accommodation. The appellant's travel for the APC was not related to the appellant's role as Lord Mayor.

Ground 3 breaches: APC contributions to travel

Facts found by the Tribunal

In addition to the facts referred to at [67] ‑ [73] above, the Tribunal found that the APC reimbursed the appellant for the costs of the following flights, in amounts exceeding $200, in order to attend meetings of the APC, and that the appellant did not disclose the payments in the specified annual returns:[49]
[49] Breach decision [214] ‑ [222].

Breach no	Date	Flight	Class	Return period
30	12 March 2008 16 March 2008	Perth - Wellington Wellington - Sydney	Economy	2007/2008
31	30 April 2008	Perth - Sydney	Business	2007/2008
41	12 April 2011 13 April 2011	Perth - Sydney Sydney - Perth	Economy	2010/2011

Tribunal's approach

The Tribunal concluded that the reference to an 'occupation' in s 5.83(2)(c) of the Act was to activities from which the relevant person earns an income, and does not extend to voluntary and charitable activities. The Tribunal also construed the term 'occupation' as requiring an element of 'occupying time', so that periodic attendances at long intervals do not constitute an occupation.[50]
[50] Breach decision [119] ‑ [121].
The Tribunal said that s 80(2) of the Act further supported those conclusions.[51] This was no doubt intended to be a reference to s 5.80(2) of the Act.

Ground 4 breaches: Accommodation provided by conference organisers

Facts found by the Tribunal

[51] Breach decision [121].

The Tribunal made the following findings of fact in relation to the breaches which are the subject of ground 4.

Breach 3 - City Development World 2008 conference

Terrapin (Australia) Pty Ltd (Terrapin) is a company that, amongst other things, curates events and conferences. Terrapin staged the 'City Development World 2008' conference in Sydney over 23 25 June 2008. Terrapin invited the appellant to attend the conference in her capacity as Lord Mayor, and the appellant gave a presentation at the conference. Terrapin provided the appellant with two nights' accommodation, with a value exceeding $200, in order to attend the conference. She did not disclose this accommodation in her 2007/2008 annual return.[52]

Breach 18 - World Design Capital conference

[52] Breach decision [223].

In 2010, Seoul was the World Design Capital of the International Council of Societies of Industrial Design. On 8 December 2010, the World Design Capital 'International Conference and Convocation Ceremony' was staged in Seoul. The appellant was invited to attend the ceremony, and accepted that invitation, in her capacity as Lord Mayor. The appellant provided a speech on 'social value through urban design' at the conference. She attended several networking events with guests including the Mayor of Seocho City (another of the City of Perth's sister cities) and the Mayor of Seoul. The appellant also provided a short speech at a VIP luncheon and participated in a media interview.
The Seoul Metropolitan Government (via the WDC Secretariat), provided the appellant with two nights' accommodation at the Shilla Seoul Hotel on 7 and 8 December 2010. The value of the accommodation exceeded $200. The appellant did not disclose this accommodation in her 2010/2011 annual return.[53]

Breach 22 - The Leaders' conference

[53] Breach decision [235].

The Property Council of Australia staged 'The Leaders' Conference' at Quay West Resort, Bunker Bay, over 24 and 25 May 2012. The appellant, in her capacity as Lord Mayor, was invited to attend the conference as a dinner speaker. The appellant accepted that invitation and gave the official dinner speech at the conference. The Property Council of Australia provided the appellant with two nights' accommodation at the Quay West Resort (for the appellant and her husband) on 24 and 25 May 2012. The value of the accommodation exceeded $200. The appellant did not disclose this accommodation in her 2011/2012 annual return.[54]

Breach 23 - World Cities Mayors Forum

[54] Breach decision [241].

The Centre for Liveable Cities, Singapore, organised the World Cities Mayors Forum in Singapore on 1 July 2012. The appellant was invited to attend the forum as a roundtable panellist by the Ministry of National Development, Singapore. The appellant accepted that invitation. She was invited to and attended the engagements in her capacity as Lord Mayor. The appellant participated in roundtable panel discussions and attended networking events with other world city Mayors. The Singapore Government provided the appellant with three nights' accommodation at the Marina Bay Sands (for the appellant and her husband) from 30 June to 2 July 2012. The value of the accommodation exceeded $200. The appellant did not disclose this accommodation in her 2012/2013 annual return.[55]

Breach 24 - Annual Future Cities Conference and Exhibition

[55] Breach decision [244].

Between 2 and 4 October 2012, Informa Exhibitions (Informa) staged the Annual Future Cities Conference and Exhibition at the Dubai International Convention and Exhibition Centre. The appellant was invited to attend the conference as a guest speaker, and accepted that invitation, in her capacity as Lord Mayor. She gave a presentation on Perth as a liveable Australian city and attended networking events. Informa provided the appellant with three nights' accommodation at the H Hotel from 1 to 3 October 2012. The value of the accommodation exceeded $200. The appellant did not disclose this accommodation in her 2012/2013 annual return.[56]

Breach 25 - Smart Cities: Future Cities conference

[56] Breach decision [247].

On 11 and 12 June 2013, Informa staged the Smart Cities: Future Cities Conference in London. The appellant was invited to attend the conference as a guest speaker, and accepted that invitation, in her capacity as Lord Mayor. She gave a case study presentation on work occurring in Perth and attended networking events. Informa provided the appellant with one night's accommodation at the Grange City Hotel on 11 June 2013. The value of the accommodation exceeded $200. The appellant did not disclose this accommodation in her 2012/2013 annual return.[57]

Breach 26 - World Cities Summit Mayors Forum

[57] Breach decision [250].

The City of Bilbao, Spain, hosted the World Cities Summit Mayors Forum in Bilbao over 13 ‑ 15 June 2013. The appellant was invited to attend the conference as a roundtable participant, and accepted that invitation, in her capacity as Lord Mayor. The appellant participated in roundtable discussions and attended networking events. The City of Bilbao provided the appellant with three nights' accommodation at the Hotel Carlton from 12 to 14 June 2013. The value of the accommodation exceeded $200. The appellant did not disclose this accommodation in her 2012/2013 annual return.[58]

Breach 29 - World Cities Mayors Forum

[58] Breach decision [253].

The Centre for Liveable Cities, Singapore, along with the Urban Redevelopment Authority, organised the World Cities Mayors Forum in Singapore on 1 June 2014. The appellant was invited to attend the forum as a roundtable panellist by the Ministry of National Development, Singapore, and accepted that invitation, in her capacity as Lord Mayor. She participated in roundtable discussions, attended networking events and attended meetings. The Singapore Government provided the appellant with four nights' accommodation at the Marina Bay Sands from 1 to 4 June 2014. The value of the accommodation was approximately $1,400. The appellant did not disclose this accommodation in her 2013/2014 annual return.[59]

Tribunal's approach

[59] Breach decision [262].

After reciting the agreed facts in relation to each of the above breaches, the Tribunal found that, contrary to s 5.78(1) of the Act, the appellant failed to disclose in the relevant annual return a gift that was required to be disclosed pursuant to s 5.82 of the Act. In each case the Tribunal found that the gift was the 'gift of accommodation' by the identified provider to the appellant in order to attend the specified conference.[60] As noted above, the Tribunal had previously referred to the effect of a payment or reimbursement by a third party being to discharge the appellant's liability as the occupant of the hotel room.[61] However, this does not appear to have been the basis on which the Tribunal ultimately found against the appellant.
[60] Breach decision [225], [237], [243], [246], [249], [252], [255], [264].
[61] Breach decision [88].
The Tribunal did not make any express findings as to why the appellant's attendance at and participation in these conferences as a speaker or presenter did not constitute fully adequate consideration in money's worth passing from the appellant to the conference organiser.
However, the Tribunal had earlier observed that:
Many of the duties undertaken by a Lord Mayor, a Shire President, or a councillor will be political in nature, for example, ribboncutting, giving speeches, presenting prizes at a school or visiting a sister city. Such activities are not in any sense commercial. So to endeavour to express those activities in terms of consideration passing from one party to another is simply inappropriate. Doubtless, visiting a sister city and cutting a ribbon or planting a tree might generate goodwill between sister cities, but it can hardly be said to be provision of consideration in the event that some disposition of property is given to or financial benefit is conferred on the ribbon cutter [94].
After referring to activities involving a 'sister city', the Tribunal observed:
It is simply not possible to ascribe a value to ribboncutting or speechgiving when those activities are performed by a relevant person as part of their duties as a Lord Mayor or councillor so as to ascertain whether consideration in money or money's worth has been provided.
A construction of a 'gift' that held that such activities could constitute consideration would provide convenient cover to a party who sought to improperly influence a Lord Mayor or councillor in the exercise of their duties by inviting them to give a speech or cut a ribbon. Such an interpretation would fail to ensure accountability [97] ‑ [98].
The Tribunal referred to a passage of the appellant's cross‑examination, in which she said that she spent a few hours preparing for her speech at the City Development World 2008 conference (breach 3). When asked whether she had attempted to 'put the amount of effort in that referable to the amount of compensation paid', the appellant replied:
It has never been a thought or concept put to me.
The appellant appeared to accept in her evidence that there was no attempt to measure whether the two contributions were equal and that it was 'difficult to measure the contribution from your side'. After quoting this passage of cross-examination,[62] the Tribunal said:
It is obvious that it is not possible to express such activities in terms of money or money's worth [100].
[62] Breach decision [99].
The Tribunal had referred to a submission that ample consideration was provided by the appellant in the form of her attendance and, on many occasions, presentations at the conference or event which she attended. The Tribunal simply said:
For the reasons stated above, the Tribunal rejects [the appellant's] submission that she provided consideration, let alone consideration in money or money's worth or fully adequate consideration [115].

Ground 5 breaches: Visits to sister cities

Facts found by the Tribunal

The Tribunal made the following findings of fact in relation to the ground 5 breaches.

Breach 15 - Shanghai World Expo

Between 1 May 2010 and 31 October 2010 the Forum Affairs Department of the Bureau of Shanghai World Expo Coordination (Shanghai World Expo) staged the Harmonious City and Liveable Life Expo in Hangzhou, China. One of the Theme Forums staged as part of the Expo, also titled Harmonious City and Liveable Life, was held over 4 to 7 October 2010. The appellant was invited to attend a sub-forum of the Theme Forum as a guest speaker, and accepted that invitation, in her capacity as Lord Mayor. She presented at a plenary session titled 'Infrastructure and Services in the Harmonious City' at the Harmonious Cities and Life Forum. The appellant also attended formal dinners and networking events, including being the 'key person' at the Expo Forum Delegation on 4 October 2010, and participated in press briefings and media interviews.

The Shanghai World Expo provided the appellant with:
(1)two nights' accommodation at the Intercontinental Shanghai Expo on 3 and 4 October 2010; and
(2)three nights' accommodation at the Dragon Hotel Hangzhou from 5 to 7 October 2010.
The value of the accommodation exceeded $200. The appellant did not disclose this accommodation in her 2010/2011 annual return.[63]

Breach 16 - 4^th World Historical and Cultural Cities Expo Nanjing

[63] Breach decision [229].

Between 20 and 24 October 2010, the City of Nanjing hosted the 4th World Historical and Cultural Cities Expo Nanjing. The Nanjing Municipal People's Government Foreign Affairs Office (Nanjing FAO) invited the appellant to attend the Expo, and she accepted that invitation, in her capacity as Lord Mayor. She attended the opening of the Expo and the 5th China Cultural Industry Trade Fair, the Mayor's Forum and networking events. Nanjing FAO provided the appellant with three nights' accommodation at the Purple Palace Nanjing. The value of the accommodation exceeded $200. The appellant did not disclose this gift in her 2010/2011 annual return.[64]

Breach 20 - Joint Conference in Medical Informatics

[64] Breach decision [232].

The Japan Association for Medical Informatics staged the 31^stJoint Conference on Medical Informatics (Joint Conference) in Kagoshima, Japan, in November 2011. The conference was hosted by Kagoshima University Graduate School. The appellant was invited to give a public lecture at the conference, for which she would receive 100,000 yen (approximately $1,200AUD at the then exchange rate). The appellant accepted that invitation.
By email dated 30 August 2011, and with subject line beginning with the words 'Speaker's Fee', the appellant wrote to the CEO of the City and asked: 'Is it a problem …'.
By email also dated 30 August 2011, the CEO replied to the appellant and indicated the speaker's fee could not be personally accepted, but could be paid to the City, with the City then able to authorise the payment of that money for any other expenses incurred by the appellant (who would be representing the City) in the course of her trip. The CEO also stated in his email that, if the appellant was still Lord Mayor, the travel and expenses would need to be declared on the next annual return under 'travel funded by others' section.
By email also dated 30 August 2011, the appellant then replied to the CEO and relevantly said: 'Got it and agree'.
The appellant was invited to and attended the engagements in her capacity as Lord Mayor. She gave a public lecture at the conference and attended networking events.
The Joint Conference provided the appellant with four nights' accommodation at the Sun Royal Hotel (for the appellant and her husband) from 20 to 23 November 2011. The value of the accommodation exceeded $200. The appellant did not disclose this accommodation in her 2011/2012 annual return.[65]

Tribunal's approach

[65] Breach decision [238].

After reciting the agreed facts in relation to each of these breaches, the Tribunal made a finding that, contrary to s 5.78(1) of the Act, the appellant failed to disclose in the relevant annual return information relating to a gift that was required to be disclosed pursuant to s 5.82 of the Act. The Tribunal identified the information as relating to the organiser's 'gift of accommodation' to attend the relevant conference.[66]
[66] Breach decision [231], [234], [240].
Before the Tribunal and this court, the appellant contended that these were all visits to 'sister cities', to which a policy applied which approved travel by the Lord Mayor without seeking further authorisation from council. The appellant's argument was that there cannot be any financial benefit conferred on the appellant by payment of her accommodation directly by the sister city host, as otherwise the costs of the accommodation would have been borne by the City. The appellant contended that this would have occurred as of right and without any reduction in the appellant's discretionary entitlement to reimbursement for other expenses. The respondent disputed the contention that these were sister city visits to which the policy applied.
It would appear that the Tribunal did not find it necessary to deal with this issue because it regarded the existence of a right of reimbursement of the expenditure by the City as irrelevant to the question of whether the appellant received a financial benefit. The Tribunal said:
The fact that a Lord Mayor or councillor may be eligible for reimbursement for, for example, accommodation, does not mean that they have not received a financial benefit.
Obviously, a Lord Mayor or councillor will need to stay somewhere. At the time that they are staying in that accommodation, if a third party is paying them at that time, they are receiving a financial benefit irrespective of whether or not they are ultimately reimbursed [103] ‑ [104].
Later the Tribunal observed:
A gift is no less a gift because a party is entitled to reimbursement. Reimbursement is a separate issue [106].

Ground 6 breach: World Energy Cities Partnership

Facts found by the Tribunal

The Tribunal found that the WECP is a nonprofit organisation comprising member cities that are recognised as international energy capitals. The WECP hosts two meetings annually, being a working meeting in May hosted by the City of Houston and the Annual General Meeting hosted by a different member city each year. The appellant attended the WECP working meeting in Houston between 3 and 8 May 2014.
The WECP agreed to pay for one night of the appellant's accommodation at the Hotel Granduca. The value of the one night's accommodation was approximately AUD$670. The accommodation expense was initially paid in full by the appellant, who was later reimbursed by the City. The City then invoiced, and was paid by, the WECP for the one nights' accommodation. The appellant did not disclose this accommodation in her 2013/2014 annual return.[67]

Tribunal's approach

[67] Breach decision [259].

After reciting the agreed facts, the Tribunal simply stated that, contrary to s 5.78(1) of the Act, the appellant failed to disclose in her 2013/2014 annual return information relating to a gift that was required to be disclosed pursuant to s 5.82 of the Act. The information related to the WECP's 'gift towards her accommodation to attend' the WECP meeting in Houston, Texas, USA between 3 and 8 May 2014.[68]
[68] Breach decision [261].
The Tribunal did not explain how a payment by WECP to the City constituted the conferral of a financial benefit made by WECP in favour of the appellant.

Grounds 2, 4 and 5: Nature of 'consideration'

Grounds 2, 4 and 5 raise a common question of law in relation to the proper construction of the term 'consideration' in the definition of 'gift' in s 5.82(4) of the Act.

Elements of the definition of a 'gift'

In its application to the present case, the definition of 'gift' contained two elements, the second of which involved two alternatives. The first element was that there was a conferral of a financial benefit made by a person (to whom we will refer as the 'provider') in favour of the appellant. The second element was that the conferral of the financial benefit was made either:
(1)without consideration in money's worth passing from the appellant to the provider; or
(2)with consideration in money's worth passing from the appellant to the provider which was not 'fully adequate'.

Financial benefit in this case

In the case of the breaches which are the subject of grounds 2, 4 and 5, the financial benefit which the Tribunal identified as being conferred on the appellant was the 'provision of accommodation' by the provider.
The Tribunal did not find that the provider had discharged a liability which the appellant had to pay for the accommodation, or made a payment reimbursing the appellant for a payment she had made for the accommodation. Either scenario would more obviously involve the conferral of a financial benefit on the appellant, either by discharging a debt she owed or by paying money to her.
Rather, it would appear that the Tribunal found that the providers conferred a financial benefit on the appellant by obtaining accommodation for which they were liable to pay, and allowing the appellant to stay in that accommodation. We accept that for one person to provide another with (free) accommodation in a hotel ordinarily confers a financial benefit in the amount that the recipient would otherwise have had to pay themselves in order to enjoy the accommodation. That characterisation of the provision of accommodation or some of the accommodation in this case is subject to the effect of the appellant's claimed entitlement to reimbursement for accommodation by the City of Perth, discussed at [172] ‑ [180] below. Subject to that issue, we accept that the financial benefit conferred on the appellant was the avoidance of the need to incur an obligation to pay for enjoying the benefit of staying in the accommodation supplied by the provider while being provided with that latter benefit.

Tribunal's approach to consideration

The appellant contended that she provided consideration in the form of her preparation for, attendance at and participation in meetings (in the case of the APC breaches) and conferences (in the case of the ground 4 and ground 5 breaches).
The Tribunal did not reject these contentions on the basis that the appellant provided consideration which was not 'fully adequate'. Rather, the Tribunal proceeded on the basis that what the appellant provided to the APC or conference organisers was not consideration at all. The Tribunal accepted the respondent's submission that the reference to 'consideration … in money's worth' was to something which can readily be valued by reference to its price in some kind of open market; that is something which can be bought or sold in an open market at an objective and predictable price.
It was for that reason that the Tribunal held that the preparation for, attendance at and participation in APC meetings did not constitute consideration within the meaning of s 5.82 of the Act.[69] Likewise, the Tribunal held that, because it was not possible to value the political activities of a council mayor, the appellant's preparation for, attendance at and participation in conferences was not consideration for the purposes of the Act.[70]

Common question of law identified

[69] Breach decision [176].

[70] Breach decision [94], [97] ‑ [98], [100], [115].

In this context, the common question of law raised by grounds 2, 4 and 5 is whether the reference in s 5.82(4) of the Act to consideration in money's worth is limited to something which can readily be valued by reference to its price in some kind of open market; that is something which can be bought or sold in an open market at an objective and predictable price.

Principles of statutory construction

The construction of a statute is 'reached by the application of rules of interpretation accepted by all arms of government in the system of representative democracy'.[71] Those rules require primary attention to be directed to the text of the relevant provisions.[72] There must be regard to the language of the statutory instrument viewed as a whole, considered in its context.[73] An important part of that context will be the purpose of the legislation, ascertained from what the legislation says (rather than any assumption about the desired or desirable reach or operation of the relevant provisions).[74] Once the purpose of the legislation is established, a construction that would promote that purpose shall be preferred to a construction that would not promote the relevant purpose.[75]
[71] Zheng v Cai [2009] HCA 52; (2009) 239 CLR 446 [28].
[72] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 [39].
[73] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 [69]; Plaintiff S4/2014 v Minister for Immigration [2014] HCA 34; (2014) 253 CLR 219 [42].
[74] Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [26]; Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 [21].
[75] Section 18 of the Interpretation Act 1984 (WA).
In this case the court is construing the definition of 'gift' in s 5.82(4) of the Act. Definitions do not have substantive effect. Ordinarily at least, they are not to be construed in isolation from the operative provision(s) in which the defined term is used. Rather, the operative provision is to be read by inserting the definition into the provision.[76]

Legal meanings attributed to the term 'consideration'

[76] Kelly v The Queen [2004] HCA; (2004) 218 CLR 216 [84], [103]; Epic Energy (Pilbara Pipeline) Pty Ltd v Commissioner of State Revenue [2011] WASCA 228; (2011) 43 WAR 186 [42] [150], [218]; Commissioner of State Revenue v WestNet Rail Holdings No 1 Pty Ltd [2013] WASCA 110; (2013) 45 WAR 140 [102].

The term 'consideration' has been given a variety of legal meanings in different contexts.[77]
[77] See Director of Public Prosecutions (Vic) v Le [2007] HCA 52; (2007) 232 CLR 562 [36] ‑ [41]; Commissioner of State Revenue (NSW) v Dick Smith Electronics Holdings Pty Ltd [2005] HCA 3; (2005) 221 CLR 496 [22] ‑ [24]; Roxborough v Rothmans of Pall Mall Australia Ltd [2001] HCA 68; (2001) 208 CLR 516 [103].
In the context of the law of contract, consideration can be expressed by reference to a detriment to the promisee. So, for example, Professor Carter proffers a modern definition of contractual consideration:[78]
as some act or forbearance involving legal detriment to the promisee, or the promise of such an act or forbearance, furnished by the promisee as the agreed price of the promise.
[78] JW Carter Contract Law in Australia (6^th edition, 2013) [6-11].
As demonstrated by the illustration offered by the High Court in Australian Woollen Mills Pty Ltd v The Commonwealth,[79] travel from one city to another is capable of constituting sufficient consideration for a contractual promise.
[79] Australian Woollen Mills Pty Ltd v The Commonwealth (1954) 92 CLR 424, 457.
When speaking in the context of contractual promises, it is common to refer to the court asking itself whether consideration is 'sufficient' but not whether it is 'adequate'. The distinction between 'sufficient' and 'adequate' consideration was explained in the following passage of an earlier edition of Professor Carter's text, quoted with approval by Kirby and Crennan JJ in Le:[80]
The rule that consideration must be sufficient requires that what is put forward as consideration reach a threshold of legal recognition. But once this threshold is reached no inquiry is required into how valuable the consideration is. Thus, the rule is frequently expressed in the form 'consideration must be sufficient but need not be adequate'.
[80] Le [115] quoting Carter and Harland Contract Law in Australia (4^th edition, 2002) page 112 [323].
The concept of consideration may have broader or different meanings in other contexts. So, in Le a majority of the High Court held that a requirement for 'sufficient' consideration in a criminal property confiscation statute, in order to avoid the automatic forfeiture of property acquired from an offender, could be satisfied by 'natural love and affection'. That conclusion was reached notwithstanding that natural love and affection may not be sufficient consideration for the purposes of the law of contract.[81]
[81] Le [109] ‑ [110].
In Archibald v Howe Pty Ltd v Commissioner of Stamp Duties (NSW),[82] the High Court was concerned with a provision of stamp duty legislation which prescribed a duty to be charged on the conveyance of property 'without consideration in money or money's worth'. Different rates of duty were applied according to whether or not the conveyance was made on a 'bona fide consideration in money or money's worth' of less than the unencumbered value of the property conveyed.[83] Dixon J gave the word 'consideration' the wider meaning or operation that belongs to it in conveyancing, rather than the more precise meaning of the law of simple contracts. The word was taken to refer to 'the money or value which moves the conveyance or transfer'.[84] In that case, a company transferred property to existing shareholders in return for a reduction in the amount and value of their shares. The discharge of the claims by the shareholders on the assets of the company was held to constitute consideration in money's worth of not less than the value of the property conveyed by the company.[85]
[82] Archibald v Howe Pty Ltd v Commissioner of Stamp Duties (NSW) (1948) 77 CLR 143.
[83] Archibald (150 ‑ 151).
[84] Archibald (152), applied in Dick Smith Electronics [22] ‑ [24], [71] where duty was charged on the dutiable value of property the subject of a transaction which was the 'consideration (if any) for the dutiable transaction (being the amount of a monetary consideration or the value of a non‑monetary consideration).
[85] Archibald (152 ‑ 154).
We also note a series of decisions of the High Court in relation to the Gift Duty Assessment Act 1941 (Cth). The Gift Duty Assessment Act imposed a tax on certain donors and donees on the making of a 'gift'. The term 'gift' was defined to mean:[86]
any disposition of property which is made otherwise than by will (whether with or without an instrument in writing), without consideration in money or money's worth passing from the disponee to the disponor, or with such consideration so passing if the consideration is not, or, in the opinion of the Commissioner, is not, fully adequate.
There is an obvious similarity in the language of the above definition and that employed in s 5.82(4) of the Act. Two differences should also be noted. First, the definition in the Gift Duty Assessment Act referred only to a disposition of property, and not to the conferral of other financial benefits. Secondly, and more importantly, the statutory context was very different, being concerned with the raising of revenue on gifts rather than the disclosure of gifts in order to preserve the integrity of the exercise of powers by a statutory authority. While bearing those differences in mind, it is still relevant to consider the manner in which the High Court construed a provision on which the definition of 'gift' in s 5.82(4) of the Act was evidently modelled.
[86] Section 4(1) of the Gift Duty Assessment Act.
In McGain v Federal Commissioner of Taxation,[87] the court upheld the trial judge's decision that a promise to pay the present value of property by instalments over a very lengthy period, without interest, was not fully adequate consideration. Their Honours found that the transactions in that case involved the transfer of assets in return for a promise to pay money without immediate payment. In that case their Honours observed that no more was required than a comparison of the value of what was promised or paid with the value of what was given. Importantly, however, their Honours observed that a simple comparison of that kind would not always be possible, for example where part of the consideration for the transfer of property is a promise to enter into and work in partnership with the transferor. The court recognised that, in cases of that kind, the determination whether fully adequate consideration has passed for a disposition of property gives rise to a more difficult problem than that with which they were concerned in McGain.[88] Their Honours observed that cases such as Robertson v Commissioner of Inland Revenue[89] and Finch v Commissioner of Stamp Duties[90] fell into such a category.
[87] McGain v Federal Commissioner of Taxation (1966) 116 CLR 172.
[88] McGain v Federal Commissioner of Taxation (176).
[89] Robertson v Commissioner of Inland Revenue (1964) NZLR 484.
[90] Finch v Commissioner of Stamp Duties [1929] AC 427.

The respondent's case against the appellant depended on the Tribunal accepting that the actions of the appellant in preparing for, attending at and participating in the conferences were not consideration in money's worth because they did not have a value that can be precisely calculated by reference to some kind of open market. The parties agreed that, once it is accepted that the appellant's actions constituted consideration in money's worth for the purposes of the Act, there was no evidence before the Tribunal capable of demonstrating that the consideration given for the conference accommodation was not fully adequate.[106] The respondent did not attempt to demonstrate this before the Tribunal; her case stood or fell on her contention that, on a proper construction of the Act, the appellant's actions were incapable of constituting consideration. It follows that, once the respondent's construction of the Act is rejected, the only available conclusion is that the alleged breaches relating to the provision of conference accommodation were not established.
[106] Appeal ts 22 ‑ 24, 33, 42 ‑ 43, 52, 59.
That is not to say that the provision of accommodation to attend a conference can never constitute a gift for the purposes of s 5.82 of the Act. One example where it might constitute a gift is where a developer books and pays for a councillor to attend a conference run by a third party. The attendance at the conference (even as speaker) may not (depending on the particular facts and circumstances) constitute fully adequate consideration in money or money's worth passing from the councillor to the developer, on the ground that the developer gains no material benefit from the councillor attending the conference.
Even accommodation provided by the conference organiser might constitute a gift where the value of the financial benefit exceeds the value of the council member's contribution to the conference. An example may arise where a council member is provided with opulent accommodation in an exotic location in return for a minimal contribution to the conference (such as cutting a ribbon or planting a tree, to use the Tribunal's examples). In cases of this kind, the value of the consideration given by the council member may not (depending on the particular facts and circumstances) be 'fully adequate'. However, in the present case the respondent accepted that it had not established that the appellant's preparation for, attendance at and participation in the conferences, if it was consideration, was not fully adequate consideration.

Conclusion as to grounds 2, 4 and 5

For the above reasons, grounds 2, 4 and 5 are made out so far as they contend that the Tribunal erred in finding that the provision of accommodation was a gift. The Tribunal should have found that the respondent had not established that the accommodation was provided without fully adequate consideration in money's worth passing from the appellant to the provider. In those circumstances the court should set aside the Tribunal's order finding that the appellant committed the breaches which are the subject of grounds 2, 4 and 5. There should be substituted an order dismissing the respondent's allegations that the appellant committed those breaches.

Ground 5: Significance of an entitlement to reimbursement

There is a further reason why ground 5 is made out and the findings that the appellant committed the breaches to which it relates should be set aside. That is because the Tribunal erred in law in finding that the provision of that accommodation conferred a financial benefit on the appellant.
The Tribunal did not reject the appellant's contention that she was entitled to reimbursement by the City of Perth for the relevant accommodation at the time it was provided, without any adverse impact on her other expense allowances. Indeed, the Tribunal did not consider that submission in its reasons. While the respondent's written submissions on appeal challenge the appellant's contention by reference to contested evidence, an appeal to this court on a question of law is not the appropriate forum to resolve that factual contest. Further, there is no notice of contention.
The additional question of law raised by ground 5 is whether the existence of an entitlement to reimbursement by the City for accommodation expenses is, as the Tribunal found, irrelevant to the question of whether the provision of the accommodation by a third party conferred a financial benefit on the appellant.
In our view that question of law must be answered in the negative. The Tribunal erred in law in holding to the contrary.
The concept of financial benefit must look to the substantive effect of the transaction. To look to the substantive rather than merely the formal effect promotes the objects of the Act by directing attention to matters which might, or might reasonably be apprehended to, divert a council member from deciding matters on their merits.
If the appellant was entitled to claim reimbursement from the City of Perth, without impact on her expense allowance, the provision of accommodation by a third party would not provide any substantive financial benefit. In that scenario, the appellant is no better or worse off according to whether the accommodation or its cost is provided by the City of Perth or a third party. Reimbursement by the City is not merely something which happens subsequent to the accommodation being provided by the third party. The appellant's point is that, at the time the accommodation was provided, she had an existing entitlement to be reimbursed for the costs of the accommodation by the City, in a manner which would not affect her other expense allowances. For this reason we reject the submission by the respondent's counsel that the provision of accommodation was a benefit at the time it was received.[107]
[107] See appeal ts 53 ‑ 54.
The appellant's counsel accepted that there might be a small financial benefit to the appellant, in that the provision of accommodation avoided her losing the use of the money which she would otherwise have had to pay to the hotel in the period between making the payment and receiving the reimbursement.[108] However, there is no basis for concluding that the extent of that financial benefit (which might, for example, be constituted by interest earned on the money) might exceed the prescribed amount of $200. Moreover, that was not and is not the case made by the respondent against the appellant.
[108] Appeal ts 38.
In concluding that the provision of accommodation by a third party constitutes a financial benefit irrespective of whether a council member is entitled to be reimbursed by the local government, the Tribunal said:[109]
More importantly, the standard of accommodation may be of a standard that is higher than a Lord Mayor or councillor is entitled to reimbursement for. If a Lord Mayor or councillor is entitled to reimbursement for a room and they are provided with the Presidential Suite, then the additional standard of accommodation is obviously capable of improperly influencing a Lord Mayor or councillor in the performance of their duties.
A financial benefit may be conferred in the postulated circumstances. However, those circumstances were not found by the Tribunal to exist in the case of the breaches to which ground 5 relates. That reasoning provides no support for the Tribunal's construction to the effect that, in all circumstances, provision of accommodation is a financial benefit notwithstanding an entitlement to reimbursement by the local government of the cost of the accommodation.
[109] Breach decision [105].
The Tribunal also observed:[110]
If s [5.82] of the [Act] were construed so as to provide that a person did not have to disclose the gift if they were entitled to reimbursement, it would be an obvious way of avoiding accountability. A person could be given a gift of any amount and could be excused from disclosing it because they were entitled to reimbursement, irrespective of whether or not they in fact claimed reimbursement.
However, the need for accountability only arises where a substantive financial benefit is provided. Action which does not substantively improve a council member's financial position is not of a kind which might, or might reasonably be apprehended to, influence the member to decide matters other than on their merits. Further, by framing the proposition by saying '[a] person could be given a gift', the Tribunal assumes the answer to the question being posed - whether this is a gift.
[110] Breach decision [106].
The Tribunal then said:[111]
It is also relevant that councillors and the Lord Mayor are entitled to reimbursement for certain expenses but without separate approval the total amount of reimbursement is capped (except for certain specific trips that had separate authority in relation to expenses, for example sister city trips). Thus, there is a distinct benefit in obtaining payment from third parties rather than having to utilise the limited amount of expenses available. There is potentially a benefit to a councillor or [the appellant], if they obtain accommodation expenses from third parties because as a result they would then have more of their expenses source of funds available to allocate to other expenditures.
However, the Tribunal made no finding as to whether this was such a case. If it was not, then there could be no financial benefit to the appellant by reason of the preservation of her expense allowance.
[111] Breach decision [106].
The Tribunal's erroneous conclusion - that the appellant's claimed entitlement to reimbursement was irrelevant to the question of whether a financial benefit was conferred - is a further reason why the findings that the appellant committed the ground 5 breaches must be set aside. If this were the only basis on which ground 5 succeeded, it would be necessary to remit the case to the Tribunal for it to determine whether the appellant's claimed entitlement to reimbursement was established by the evidence before the Tribunal. However, in light of our conclusions that the ground 5 breaches were not established for other reasons addressed above, there is no need to remit the case to the Tribunal to resolve the question of the appellant's disputed entitlement to reimbursement.

Ground 6: The WECP payments

The Tribunal also erred in law in finding that the WECP's 'gift towards her accommodation' constituted the conferral of a financial benefit made by the WECP in favour of the appellant. The Tribunal found that payment was made by the WECP to the City of Perth after the appellant had been reimbursed by the City for her accommodation expenses. The Tribunal did not suggest any basis on which the payment of money from the WECP to the City constituted the conferral of a financial benefit on the appellant by the WECP.
The respondent's submissions in response to ground 6 seek to characterise the provision of accommodation or the preservation of the appellant's expense account as the financial benefit, and say that there was no presumption that the City would have met the expense. Those submissions are made by reference to the evidence rather than any finding by the Tribunal. Further, they do not account for the fact that the City had actually reimbursed the appellant before the payment was made by the WECP to the City. The accommodation was not provided by the WECP.
The appellant also takes the point that the factual issues raised in the respondent's written submissions were not raised in the Tribunal and were not the subject of a notice of contention in the appeal.[112] Submissions in relation to ground 6 by senior counsel for the respondent did not contend that the issues were raised below.[113] He also accepted that the financial benefit must be constituted by payment in the appellant's favour, rather than an antecedent agreement to make the payment.[114]
[112] Appeal ts 40.
[113] Appeal ts 56 ‑ 59.
[114] Appeal ts 57.
The Tribunal's findings and the respondent's submissions do not disclose any proper basis for concluding that there was a conferral of a financial benefit made by the WECP to the appellant. The court should set aside the Tribunal's order finding that the appellant committed breach 28, and substitute an order dismissing the respondent's allegation that the appellant committed that breach.

Ground 3: Contributions to travel by APC

The contributions to travel by the APC, which are the subject of ground 3, fall to be considered under s 5.83 rather than s 5.82 of the Act. Section 5.83 applies to contributions that have been made to a council member's travel during the return period, whether or not those contributions are in the nature of 'gifts'. In the present case, there is no contest that the APC contributed to the appellant's travel to attend APC meetings.
The question of law raised by ground 3 is whether the APC's contributions to the appellant's travel to attend APC meetings (which were not related to her duties as Lord Mayor) were 'made in the ordinary course of an occupation of' the appellant. If the contributions were made in the ordinary course of an occupation of the appellant which was not related to her duties as a council member, then s 5.83(2)(c) of the Act exempted the APC's contributions from the disclosure requirement.
The Tribunal answered this question in the negative on the basis that the reference to an 'occupation' was to activities from which the relevant person earns an income, and that periodic attendances over long intervals did not constitute an occupation.
The respondent's submissions, which were 'broadly accepted' by the Tribunal,[115] referred to a number of dictionary definitions of 'occupation':[116]
[115] Breach decision [120].
[116] Breach decision [119].
The Encyclopaedic Australian Legal Dictionary defines 'occupation' in the relevant sense as:
A person's employment, calling, or business. A trade, vocation, or craft.
The Oxford English Dictionary relevantly defines 'occupation' as:
the state of having one's time or attention occupied; what a person is engaged in; employment, business; work, toil; and
(a)a particular action or course of action in which a person is engaged, esp. habitually; a particular job or profession; a particular pursuit or activity.
The Macquarie Dictionary relevantly defines 'occupation' as:
(a) one's habitual employment; business, trade, or calling; and
(b) that in which one is engaged.
The respondent submitted that the common thread in all these definitions is employment. The respondent refers to the use of the word 'occupational' in the title to the Occupational Health, Safety and Welfare Act 1984 (WA) as indicating that the work undertaken in an employer/employee relationship (which the respondent says is inevitably a salaried relationship) is treated as the ordinary meaning of the word 'occupation' in legislation. The respondent submitted that s 5.80(2)(a) of the Act, which refers to income from an occupation, presumes that an occupation is something from which an income is derived.
These submissions should not have been accepted. Employment is only one of the words used in the dictionary definitions to which the respondent referred. Others included 'calling', 'business', 'vocation', 'craft' and 'work'. There is nothing in the language or context of s 5.83(2)(c) of the Act which indicates that the term 'occupation' is employed in only one aspect of its ordinary meaning. There is nothing in the dictionary definitions to indicate that work regularly undertaken in the business of a charitable organisation, for which a person is not remunerated, cannot be an occupation. The fact that the Occupational Health, Safety and Welfare Act (by using language other than 'occupation')[117] imposes duties on persons who carry on certain activities for reward does not confine the meaning of the term 'occupation' in other legislation. Indeed, the only use of the term 'occupation' in the body of that Act is in relation to the occupation of premises.[118] There is no warrant to limit the reference to occupation in s 5.83(2)(c) of the Act to occupation carried out under a contract of employment or some other arrangement pursuant to which income is derived.
[117] Duties are imposed on 'employers' and 'employees' (terms which are defined by reference to the existence of a contract of employment), 'self-employed persons' (a phrase which is expressly defined by reference to work for gain or reward) and persons with a relationship with workplaces (where employees or self-employed persons work or are likely to be in the course of their work): see the definitions in s 3(1) of the Occupational Health, Safety and Welfare Act.
[118] Section 23G(1)(b), s 23G(4) and s 49(7)(b) of the Occupational Health, Safety and Welfare Act.
The subject matter of s 5.80 is disclosure of sources of income. The reference to 'income from an occupation' in that context carries no implication that in s 5.83(2)(c) only activities from which income is derived are occupations. Nor does s 5.80 make exclusive provision for disclosure of matters which relate to the sources of income which it identifies. While s 5.80(2)(b) refers to income from a trust, s 5.81 also contains disclosure requirements in relation to trusts. While dividends on shares held in a corporation would be a source of income which would be disclosable under s 5.80, interests in corporations are also disclosable under s 5.84. Other provisions, such as s 5.82 and 5.86 of the Act, do not contain 'occupation' exceptions. It cannot be inferred that contributions made in the ordinary course of an occupation are exempted by s 5.83(2)(c) because sources of income from an occupation are disclosable under s 5.80 of the Act.
Senior counsel for the respondent also referred to exceptions for disclosure requirements for real property and debts which refer to the ordinary course of an occupation.[119] There is nothing in those references which justifies a reading down of the reference to occupation in s 5.83(2)(c).
[119] Section 5.79(2)(b) and s 5.85(2)(d) of the Act, referred to at appeal ts 49.
It may be accepted that the reference to the 'ordinary course of an occupation' in s 5.83(2)(c) imports some requirement for regularity. However, there is no reason why periodic activity cannot suffice. The appellant was a member of the APC who regularly attended periodic meetings as part of her voluntary work for that organisation. The APC's contributions to the appellant's travel were properly characterised as made in the ordinary course of her occupation as a member of that organisation.
The Tribunal erred in law in finding that the reference to 'occupation' in s 5.83(2)(c) was only to activities from which an income is earned. It also erred in law in finding that the periodic nature of the appellant's APC activities precluded those activities from being characterised as an 'occupation' for the purposes of s 5.83(2)(c) of the Act
The court should set aside the Tribunal's order finding that the appellant committed the ground 3 breaches, and substitute an order dismissing the respondent's allegation that the appellant committed those breaches.

Ground 7: Separate breaches

Ground of appeal 7 contends that the Tribunal erred in law in finding that a separate 'serious breach' occurred in respect of each item not included on the appellant's annual returns. The appellant contends that the Tribunal should have found that, on the proper construction of the Act, there was only one 'serious breach' in respect of each annual return.
Given the above conclusions, this ground of appeal only has remaining significance for the breaches which have not been set aside in this appeal.
The Tribunal noted the differences between a criminal proceeding and applications before the Tribunal.[120] In relation to proceedings in the Tribunal, the Tribunal observed:
As can be seen by the circumstances of this case, a person may wish to take a different approach in relation to allegations made in relation to an alleged breach of s 5.78 of the [Act] concerning different gifts and/or different contributions to travel, whether or not they are contained within the same return. The Tribunal is satisfied that the approach of the applicant in specifying a separate allegation in relation to each gift or contribution to travel is appropriate and has allowed the respondent to properly understand, and address, the assertions made in these proceedings. The Tribunal is satisfied that the substantial merits of the application required the respondent to be able to address each allegation in relation to each separate gift or travel contribution distinctly. The form of the allegations as made by the applicant is appropriate in the circumstances of this case and the Tribunal needs to determine each separate allegation [152].
[120] Breach decision [150] ‑ [151].

This ground has not been established. Under s 5.105(3) of the Act, a council member commits a serious breach when the council member 'commits any offence under a written law'. The offence defined by s 5.78 of the Act is failing to comply with the requirements of specified sections in relation to the disclosure of information in a return. The offence is defined by reference to the failure to comply with one of a series of disclosure requirements in a return, rather than the lodgement of a return which does not comply with disclosure requirements. The requirements in s 5.82 and s 5.83 were to disclose 'each' gift or contribution to travel (respectively) made in the return period. A separate offence (and therefore a separate serious breach) is committed each time a council members fails to comply with the specified requirements in a single annual return.

Ground 1: Adequacy of reasons

The success of grounds 2 ‑ 6 means that it is unnecessary to resolve ground 1, which complains that the Tribunal erred in law in failing to provide adequate reasons in respect of its findings as to the breaches which are the subject of subsequent grounds.
In our respectful opinion, it is appropriate to make the following observations as to the Tribunal's Breach reasons. In a case where there were disputes about factual matters and evidence was led, the Tribunal did not make findings of primary fact on the evidence before it. The Tribunal's fact finding was effectively confined to a recitation of facts agreed by the parties in relation to each breach. The Tribunal's reasons do not make findings of facts derived from the oral and documentary evidence which the parties put before the Tribunal. That is an important, indeed essential, part of the function of any primary decision‑maker.
Secondly, the Tribunal resolved a number of critical issues by reproducing large tracts of the respondent's written submissions. The Tribunal then indicated that it 'broadly accepted' those submissions, often without significant elaboration and without referring to or dealing with the contrary submissions advanced by the appellant. The reference to 'broad acceptance' begs the question of precisely what aspects of the respondent's submissions the Tribunal did and did not accept. The reasons of the Tribunal must explain the actual path of reasoning in sufficient detail to enable the unsuccessful litigant to understand why they were unsuccessful and to enable an appeal court to determine whether the decision involved appellable error.[121] The expression of the Tribunal's reasoning in its own language is conducive to meeting that requirement, and to showing that it engaged with the losing party's case.
[121] Centex Australasia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79 [103](a) and (b) and cases there cited.
Thirdly, important elements of the appellant's submissions were not referred to, at all, by the Tribunal. It is certainly not necessary for a tribunal (or court) to refer to every submission advanced by a party.[122] However, a tribunal or court must engage with the central element(s) of a losing party's case and explain why that case fails.[123] Considering that party's submissions is an aspect of what procedural fairness requires.[124] Ordinarily, that involves something more than a statement that the case is rejected.
[122] Centex [103](c).
[123] Mount Lawley v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [28], Centex [103].
[124] Forrest & Forrest Pty Ltd v Minister for Mines and Petroleum [2017] WASCA 153 [103].
As we have said, the errors of law identified in grounds 2 ‑ 6 make it unnecessary to determine whether inadequacy of the Tribunal's reasons would itself justify allowing the appeal.

Disposition of the appeals

For the above reasons, each of the Tribunal's findings of breach which are challenged by grounds 2 ‑ 6 involved an error of law and must be set aside.
While the proceedings are termed an appeal, the appeal is only on a question of law and is in the nature of proceedings for judicial review.[125] The consequently limited scope for the proper exercise of this court's power to make substitutive orders, contained in s 105(9) of the SAT Act, was addressed by Newnes and Murphy JJA in Medical Board v Woollard:[126]
This court may make substitutive orders under s 105(9) where only one conclusion is open on the correct application of the law to the facts found by the Tribunal. The language of s 105(9) is also wide enough to allow this court to make substitutive orders in other circumstances, although that power must be exercised having regard to the limited nature of the appeal on a question of law only. Thus, for example, if a factual matter were to remain to be decided in consequence of a successful appeal, it may be appropriate for this court to determine the matter upon the uncontested evidence or the primary facts found by the Tribunal.
[125] Osland v Secretary to the Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320.
[126] Medical Board v Woollard [2017] WASCA 64; (2017) 51 WAR 32 [214]; see also, to similar effect, Woollard [273] and Commissioner for Consumer Affairs v Carey [2014] WASCA 7 [166].
Consistently with those principles, the court may make substitutive orders dismissing the respondent's allegations of the impugned breaches, and make a finding that the appellant committed the remaining 19 breaches which were not disputed on appeal.
The appellant requires leave to appeal against the orders made on the Breach decision. Leave to appeal should be granted in circumstances where the grounds have been established, and the appellant would suffer the substantial injustice of being found to have committed serious breaches of the Act which were not actually established.[127]
[127] As to the principles governing the grant of leave to appeal, see Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [16] ‑ [18], applied in Legal Profession Complaints Committee v Rayney [2017] WASCA 78; (2017) 51 WAR 142 [87].
Although the Tribunal referred to the appropriate penalty for certain breaches or groups of breaches,[128] the Tribunal's order was for a single period of disqualification for 18 months in relation to the 45 serious breaches which the Tribunal identified. The setting aside of the Tribunal's findings as to some of the breaches means that the consequential penalty order must also be set aside. This renders the appeal against penalty redundant. In these circumstances the interests of justice do not require the grant of leave to appeal against the orders made on the Penalty decision. Leave to appeal in CACV 90 of 2017 should be refused.
[128] Penalty decision [186] ‑ [191].
In their written submissions, both parties submitted that if the court upheld the appeal against the Breach decision, it should proceed to determine the appropriate penalty for the established breaches.[129] However, in the course of argument both parties accepted that the limited function of this court in correcting legal error meant that the only appropriate order was to remit the matter to the Tribunal for it to impose the penalty for the remaining breaches.[130] For the reasons that follow, that concession was correctly made.
[129] White AB 27, 49 in Penalty Appeal.
[130] Appeal ts 67, 89.
The discretionary nature of the power to impose a penalty involves a weighing of various considerations which may point in different directions. That is a task for the Tribunal, not for a court the function of which is limited to the correction of legal error. By definition, there is no single correct answer to a question of a discretionary character. Thus, it cannot be said that only one conclusion is open on the facts found by the Tribunal or the uncontested evidence.
Further, significant aspects of the evidence going to the appropriate penalty (such as that going to the appellant's level of insight and remorse) were contested. The Tribunal's errors of law in the Breach decision infected its fact finding in relation to those matters in the Penalty decision. For example, the Tribunal expressed the view in the Penalty decision that the appellant's conduct was 'grossly careless'.[131] It concluded that the appellant did not understand 'the error of her ways' or the 'significance of the breaches'.[132] These findings were based in part on the Tribunal incorrectly regarding significant aspects of the appellant's conduct as constituting a serious breach. Consequently, this court could not determine the question of penalty by reference to the facts found by the Tribunal in the penalty decision. Further fact‑finding will be necessary.
[131] Penalty decision [152].
[132] Penalty decision [180].
The appropriate penalty should be considered by a differently constituted Tribunal, with liberty to hear further evidence if the Tribunal decides it is appropriate to do so. In the Penalty decision, the Tribunal made a number of findings adverse to the appellant which were based, at least in part, on the number of breaches which the Tribunal had (erroneously) found to be established. In addition to the matters referred to in the previous paragraph, the Tribunal placed particular emphasis on the appellant's failure to follow advice to declare the APC's provision of accommodation and contributions to travel,[133] which this court has found were not required to be disclosed. It is in the interests of justice that the appropriate penalty be determined by a Tribunal constituted by members who have not made adverse findings against the appellant based on an erroneous view of the requirements of the Act.
[133] Penalty decision [91] ‑ [103].

Orders

For the above reasons, the following orders should be made in the appeals:

CACV 57 of 2017 (Breach appeal)

(1)Leave to appeal is granted.
(2)The appeal is allowed.
(3)Orders 1 and 2 of the orders made by the State Administrative Tribunal in DR 212/2016 on 9 May 2017 are set aside and the following orders are substituted:
(a)The applicant's allegations that the respondent committed breaches 2 ‑ 4, 7 ‑ 9, 11, 13 ‑ 26, 28 ‑ 31 and 41, (as identified in the applicant's statement of issues, facts and contentions dated 20 December 2016) are dismissed.
(b)The applicant's allegations that the respondent committed breaches 1, 5 ‑ 6, 10, 12, 27, 32 ‑ 40 and 42 ‑ 45 (as identified in the applicant's statement of issues, facts and contentions dated 20 December 2016), and that those breaches are serious breaches, are established.

(4)Orders 1 and 2 made by the State Administrative Tribunal in DR 212/2016 on 4 September 2017 are set aside.
(5)The matter is remitted to the Tribunal, constituted by different members, for reconsideration of the orders which should be made under s 5.117 of the Local Government Act 1995 (WA) in respect of serious breaches 1, 5 ‑ 6, 10, 12, 27, 32 ‑ 40 and 42 ‑ 45, with liberty to hear further evidence if the Tribunal decides it is appropriate to do so.

CACV 90 of 2017 (Penalty appeal)

(1)Leave to appeal is refused.

We would hear from the parties as to costs in relation to the proceedings before this court and the proceedings before the Tribunal.