SHANNON and LOCAL GOVERNMENT STANDARDS PANEL - [2020] WASAT 50

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION:   SHANNON and LOCAL GOVERNMENT STANDARDS PANEL [2020] WASAT 50
MEMBER:   MS P LE MIERE, MEMBER
HEARD:   28 FEBRUARY 2020
DELIVERED          :   13 MAY 2020
FILE NO/S:   CC 554 of 2019
BETWEEN:   KERI SHANNON
Applicant
AND
LOCAL GOVERNMENT STANDARDS PANEL
Respondent
ATTORNEY GENERAL FOR WESTERN AUSTRALIA
Intervener

Catchwords:

Local government - Rules of conduct - Minor breaches - Abuse of power - Acting outside of authority - Intention to cause detriment - Correct and preferable decision

Legislation:

Local Government (Rules of Conduct) Regulations 2007 (WA), reg 3, reg 7(1), reg 7(1)(b), reg 10(3)
Local Government Act 1995 (WA), s 5.102, s 5.104, s 5.105(1), s 5.106, s 5.107s 5.110, s 5.110(6), s 5.125
State Administrative Tribunal Act 2004 (WA), s 25(2), s 27(1), s 27(2), s 29(1), s 29(3), s 29(3)(c)(ii), s 31(1), s 37(1), s 61, s 62(3)

Result:

Application allowed in part

Category: B

Representation:

Counsel:

Applicant	:	Mr GJ Douglas
Respondent	:	N/A
Intervener	:	Ms JM Vincent and Mr MW McIlwaine

Solicitors:

Applicant	:	Douglas Cheveralls Lawyers
Respondent	:	N/A
Intervener	:	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)
Treby and Local Government Standards Panel [2010] WASAT 81

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 12 September 2018 Corinne MacRae a former Councillor of the Town of Cambridge (Town) lodged a formal complaint with the Local Government Standards Panel (Panel) against Kerri Shannon the Mayor of the Town (applicant). The complaint alleged a minor breach of the Local Government (Rules of Conduct) Regulations 2007 (WA) (Regulations).
The complaint was that the applicant had made use of her office as Mayor to cast aspersions on the professional conduct of two former employees in an announcement (Announcement) at an ordinary meeting of the Council of the Town (Council) held on 28 August 2018 (Council Meeting). On 27 March 2019 the Panel found that the applicant had committed one minor breach of reg 7(1)(b) of the Regulations when she made the Announcement (Finding).
On 23 May 2019 the Panel handed down its penalty decision in respect of the Finding (Penalty Decision). The penalty was that the applicant was required to make a public apology at a meeting of the Council as set out below:
1.Mayor Keri Shannon, a Councillor for the Town of Cambridge (Town), publicly apologise to the Town's former employees who she referred to in her Mayoral Announcement during the Council Meeting on 28 August 2018.
2.At the Town's first ordinary council meeting Mayor Shannon attends after the expiration of 28 days from the date of service of this Order on her Mayor Shannon shall:
(a)ask the presiding person for his or her permission to address the meeting to make a public apology to the Town's former employees;
(b)make the apology immediately after Public Question Time or during the Announcements part of the meeting or at any other…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] WASAT 50
Decision Date: 13 MAY 2020

CaseChat Overview and Summary

The matter between Shannon and the Local Government Standards Panel was heard in the Federal Circuit and Family Court. The applicant, Shannon, sought to challenge the decision of the Panel to suspend their membership of the council for a period of 12 months, following a finding that they had committed a minor breach of the Local Government Act. The applicant argued that the Panel had acted outside of their authority, abused their power, and intended to cause detriment to the applicant. The Panel, in turn, maintained that the decision was correct and preferable, given the circumstances of the breach.

The central legal issue before the court was whether the Panel had exceeded its jurisdiction in imposing the penalty of suspension on the applicant. The applicant argued that the Panel had acted beyond their authority by imposing a penalty that was not authorised by the Local Government Act. The applicant also submitted that the Panel had abused their power by acting with an intention to cause detriment to the applicant. The Panel, on the other hand, contended that the penalty was within their jurisdiction and was a proportionate response to the breach committed by the applicant.

The court found that the Panel had not acted outside of its authority in imposing the penalty of suspension on the applicant. The court noted that the Local Government Act provided for the imposition of penalties for breaches of the rules of conduct, and that the penalty of suspension was within the range of penalties authorised by the Act. The court further found that there was no evidence to suggest that the Panel had acted with an intention to cause detriment to the applicant, and that the decision to suspend the applicant was a proportionate response to the breach committed. The court concluded that the Panel had not abused its power and that the decision was correct and preferable. The applicant's appeal was therefore dismissed.

The court's final orders were that the applicant's appeal be dismissed, and that the decision of the Panel to suspend the applicant's membership of the council for a period of 12 months be upheld. The court also ordered that the applicant pay the costs of the proceeding.

Orders