SCOTT and LOCAL GOVERNMENT STANDARDS PANEL
[2019] WASAT 95
•22 OCTOBER 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION: SCOTT and LOCAL GOVERNMENT STANDARDS PANEL [2019] WASAT 95
MEMBER: MS P LE MIERE, MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 22 OCTOBER 2019
FILE NO/S: CC 911 of 2019
BETWEEN: MURRAY SCOTT
Applicant
AND
LOCAL GOVERNMENT STANDARDS PANEL
First Respondent
SHIRE OF CAPEL
Second Respondent
ATTORNEY GENERAL FOR WESTERN AUSTRALIA
Intervenor
Catchwords:
Local Government - Rules of conduct - Sanction for minor breach - Turns on own facts
Legislation:
Local Government (Rules of Conduct) Regulations 2007 (WA), reg 7(1)(b)
Local Government Act 1995 (WA), s 5.102A, s 5.110(6), s 5.125
State Administrative Tribunal Act 2004 (WA), s 27(1) s 27(2), s 29(1), s 29(3)
Result:
Application allowed
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| First Respondent | : | Ms RK Davey |
| Second Respondent | : | N/A |
| Intervenor | : | Ms RK Davey |
Solicitors:
| Applicant | : | N/A |
| First Respondent | : | State Solicitor's Office |
| Second Respondent | : | N/A |
| Intervenor | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Chief Executive Officer, Department of Local Government and Communities and Scaffidi [2017] WASAT 67 (S)
Chief Executive Officer, Department of Local Government and Communities and Scaffidi [No 2] [2018] WASAT 66
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 22 October 2018 Michael Southwell (Cr Southwell) of the Capel Shire Council (Shire) lodged a formal complaint with the Local Government Standards Panel (Panel) against Murray Scott (Cr Scott) a councillor of the Shire (applicant). The complaint alleged a minor breach of the Local Government (Rules of Conduct) Regulations 2007 (WA) (Regulations).
On 5 March 2019 the Panel found that the applicant had committed one minor breach of reg 7(1)(b) of the Regulations when he made a negative comment about councillor Cr Southwell in an email dated 27 August 2018 (Minor Breach).
On 17 May 2019 the Panel handed down its penalty decision in respect of the Minor Breach by the applicant. The penalty was that CrScott was required to make a public apology at a meeting of the Council of the Shire (Council) as set out below:
ORDER
Delivered 17 May 2019
DEFAMATION CAUTION The general law of defamation, as modified by the Defamation Act 2005 (WA), applies to the further release or publication of all or part of this document or its contents. Accordingly, appropriate caution should be exercised when considering the further dissemination and the method of retention of this document and its contents
THE LOCAL GOVERNMENT STANDARDS PANEL ORDERS THAT:
1. Councillor Murray Scott, a Councillor for the Shore of Capel publicly apologise to Councillor Michael Southwell, as specified in paragraph 2 below.
2. On the ordinary council meeting first occurring after the expiration of 28 days from the date of service of this Order on him, Councillor Scott shall:
a. attend the relevant ordinary council meeting; -
b. ask the presiding person for his or her permission to address the meeting to make a public apology to the public;
c. make the apology immediately after Public Question Time or during the Announcements part of the meeting, or at any other time when the meeting is open to the public, as the presiding person thinks fit; and
d. address the Council and public as follows, without saying any introductory words before the address, and without making any comments or statement after the address:
'I advise this meeting that:
i. A complaint was made to the Local Government Standards Panel, in which it was alleged that I contravened the Local Government (Rules of Conduct) Regulations 2007 (WA) on 24 August when I wrote a negative email regarding Cr Southwell to other Councillors of the Shire of Capel.
ii. The Panel found that I breached the Shire of Capel's Code of Conduct and regulation 7(1)(b) of the said Regulations by making comments that were likely to cause CR Southwell embarrassment.
iii. I accept that I should not have made the negative comments regarding Councillor Southwell.
iv. I now apologise to Councillor Southwell.'
On 20 June 2019 the applicant lodged an application for review of the penalty decision with the Tribunal. The review of the Panel's decision is within the Tribunal's review jurisdiction (see s 5.125 of the Local Government Act 1995 (WA) (LG Act)).
On 8 July 2019 the Tribunal stayed the Panel's decision until further order.
The Tribunal made orders adding the Shire as a party to the proceedings and granted leave to the Attorney General for Western Australia to intervene.
The Tribunal determined it appropriate to add the Shire as a party given the penalty decision of the Panel (if affirmed) by the Tribunal would require the involvement of the Shire in the implementation of the order.
Neither the Panel nor the Shire played an active role in the review as is appropriate given the nature of review proceedings. The Panel's role was confined to providing a statement of the reasons for the decision under review and other documents and material in the Shire's possession or under the Shire's control that are relevant to the Tribunal's review of the decision.
The Tribunal was assisted by written submissions in relation to penalty filed by the intervener.
With the agreement of the parties the Tribunal ordered that it would determine the matter entirely on the documents.
The issue arising on review
The review proceeding is a hearing de novo (s 27(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act)) with the purpose of the review being to produce the correct and preferable decision (s 27(2) of the SAT Act). In dealing with this matter the Tribunal has the same functions and discretions exercisable by the original decisionmaker (s 29(1) of the SAT Act). The Tribunal may either affirm the decision being reviewed; or vary the decision being reviewed; or set aside the decision being reviewed and substitute its own decision or refer the matter back to the original decisionmaker for reconsideration (s 29(3) of the SAT Act).
The Tribunal therefore undertakes the same considerations as the respondent with the benefit of any new and/or additional information and the critical issue remains as it was when the complaint was originally considered by the respondent.
The issue arising on review is what sanction(s) should be imposed on the applicant for the Minor Breach.
Sanctions for minor breaches generally
The LG Act allows for the imposition of various penalties for minor breaches. The hierarchy of penalties range from the least serious being an order that a person undertake training as specified in the order, to the most serious, being an order the person be publicly censured.[1]
[1] Local Government Act 1995 (W.A.), s.5.102A, minor breach has the meaning given in s.5.105(1) andAt the period when the penalty decision was imposed s 5.110.6 of the LG act stated:
The breach is to be dealt with by
(a)dismiss the complaint; or
(b)ordering that
(i)the person against whom the complaint was made be publicly censured as specified in the order; or
(ii)the person against whom the complaint was made apologise publicly as specified in the order; or
(iii)the person against whom the complaint was made undertake training as specified in the order; or
or
(c)ordering 2 or more of the sanctions described in paragraph (b).
Subsection 5.110(6) of the LG act was amended in July 2019. The subsection currently provides:
The breach is to be dealt with by
(a)ordering that no sanction be imposed; or
(b)ordering that
(i)the person against whom the complaint was made be publicly censured as specified in the order; or
(ii)the person against whom the complaint was made apologise publicly as specified in the order; or
(iii)the person against whom the complaint was made undertake training as specified in the order;
or
(iv)the person against whom the complaint was made pay to the local government specified in the order an amount equal to the amount of remuneration and allowances payable by the local government in relation to the complaint under Schedule 5.1 clause 9;
or
(c)ordering 2 or more of the sanctions described in paragraph (b).
Principles to be applied when imposing a penalty for minor breaches
The Tribunal accepts the intervener's submission that the purpose of the imposition of a penalty under the LG Act is generally for the protection of the public and the maintenance of standards of conduct of council members.[2]
[2] Ibid at [14][19].
Further, guidance as to the factors which the Tribunal may consider when determining the appropriate penalty to impose can be found in Scaffidi at [75] and Chief Executive Officer, Department of Local Government and Communities and Scaffidi [No 2] [2018] WASAT 66 at [76]. They include but are not limited to:
(a)the nature and seriousness of the breaches;
(b)the councillor's motivation for the contravention;
(c)whether or not the councillor has shown any insight and remorse into his/her conduct;
(d)whether the councillor has breached the LG Act knowingly or carelessly;
(e)the councillor's disciplinary history;
(f)likelihood or not of the councillor committing further breaches of the LG Act;
(g)personal circumstances at the time of conduct, and of imposing the sanction;
(h)need to protect the public through general deterrence and maintain public confidence in local government; and
(i)any other matters which may be regarded as aggravating conduct or mitigating its seriousness.
The appropriate sanction
The applicant submitted that the offending email was sent as a result of frustration with Cr Southwell's conduct towards him. The applicant accepts that his conduct was inappropriate. He says his conduct was an error of judgment.
The applicant says and it is not disputed that he has been a councillor since 1993, he was recognised by the Western Australian Local Government Association in 2019 for eminent service to the local government sector and there has been no complaints in respect of his conduct as a councillor until this incident.
The applicant also submits that the email correspondence did not enter the public domain and there was no public comment regarding it.
The applicant says that an appropriate sanction is for an order for further training.
The intervener maintains that the sanction imposed by the Panel of a public apology is the correct sanction. It argues that the applicant's breach is, whilst not on the upper range of seriousness it cannot be considered insignificant.
Further that the applicant's conduct cannot be excused because the applicant acted out of frustration. That as a councillor with 25 years' experience he is expected to conduct himself in all his communications relating to local government matters at a higher standard than an ordinary member of the public.
The intervener submits a sanction should be imposed to reflect the community's disapproval of the contravention of reg 7(1)(b) of the Regulations to dissuade other councillors from engaging in similar conduct and thereby seeking to maintain appropriate standards of behaviour of councillors who send any communication relating to other councillors or council business.
The intervener says that a sanction requiring training is not appropriate in this situation. The applicant is not an inexperienced councillor and further training as to the use of emails on the use of acceptable language in emails is unlikely to be useful.
Consideration
In this instance the breach on the scale of minor breaches is towards the lower end.
The email the subject of the finding of the Minor Breach was not publicly distributed, it was purposely spent sent to two councillors and the Chief Executive Officer of the Shire. The applicant mistakenly also forwarded the email to Cr Southwell.
The Tribunal has purposefully not set out the wording of the offending email, as to do so would further publish the offending words. It considers it does not need to do so as it is accepted by all parties that the negative comment in relation to Cr Southwell in the email by the applicant to Cr Southwell was intended to denigrate, and thereby cause damage and detriment to Cr Southwell and thereby breached reg 7(1)(b) of the Regulations.
In considering the submissions by the applicant and intervener as to what is an appropriate sanction the Tribunal has determined that whilst the Minor Breach is towards the minor end of the scale the Panel found the negative comment was intended to denigrate and cause damage and detriment to Cr Southwell and therefore an apology is required to be made to Cr Southwell.
The Tribunal accepts that the negative comments were made as a result of frustration by the applicant and the applicant has shown insight and remorse.
There is no suggestion by the intervener that the applicant deliberately contravened the LG Act.
The Tribunal considers it unlikely the applicant will commit further breaches given his insight and remorse.
The purpose of disciplinary proceedings includes as submitted by the Intervener to not only reflect the communities' disapproval of such conduct (if they are aware of it) but to also maintain appropriate standards of behaviour of councillors who send communications relating to other councillors or council business.
The Tribunal finds the correct and preferable decision is to vary the decision of the Panel to include an apology to Cr Southwell but not to make the apology public.
The Tribunal does not consider that a public apology is necessary as the email was not addressed to or sent to the public at large.
The Tribunal does consider it appropriate that other members of the Shire be aware of the apology to dissuade other councillors from engaging in similar conduct and to reinforce to councillors what appropriate standards of behaviour are expected of councillors who send any communication relating to other councillors or council business.
Orders
1.The decision of the Local Government Standards Panel dated 17 May 2019 in SP 2018-102 is varied.
2.Pursuant to s 5.110(6)(b)(ii) and s 5.110(c) of the Local Government Act 1995 (WA) that, in relation to the minor breaches of reg 4(1) and reg 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007 (WA) Councillor Murray Scott make an apology to Councillor Michael Southwell at a closed Council meeting in the terms set out below.
3.On the ordinary council meeting first occurring after the expiration of 28 days from the date of service of this order on him Councillor Scott:
(a)attend the relevant ordinary council meeting;
(b)ask the presiding person to close the meeting to the public at an appropriate time and to allow him to address the councillors:
(c)immediately upon the meeting being closed to the public address the Council and without saying any introductory words and without making any comments or statements after the address apologise as follows:
I advise this meeting that:
(i)A complaint was made to the Local Government Standards Panel, in which it was alleged that I contravened the Local Government (Rules of Conduct) Regulations 2007 (WA) on 24 August 2019 when I wrote a negative email regarding Councillor Southwell to other Councillors of the Shire of Capel.
(ii)The panel found that I breached the Shire of Capel's Code of Conduct and regulation 7(1) of the said Regulations by making comments that were likely to cause Councillor Southwell embarrassment.
(iii)I accept that I should have not made negative comments regarding Councillor Southwell.
(iv)I now apologise to Councillor Southwell.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS P LE MIERE, MEMBER
22 OCTOBER 2019
Chief Executive Officer, Department of Local Government and Communities and Scaffidi [2017] WASAT 67 (S) (Scaffidi) at [22].
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