STECK and LOCAL GOVERNMENT STANDARDS PANEL - [2011] WASAT 117

STECK and LOCAL GOVERNMENT STANDARDS PANEL [2011] WASAT 117

Last Update: 12/08/2011

STECK and LOCAL GOVERNMENT STANDARDS PANEL [2011] WASAT 117
Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2011] WASAT 117
Act:	LOCAL GOVERNMENT ACT 1995 (WA)
Case No:	DR:63/2011	Heard:	22 JUNE 2011
Coram:	JUDGE T SHARP (DEPUTY PRESIDENT)	Delivered:	09/08/2011
No of Pages:	23	Judgment Part:	1 of 1
Result:	Application upheld and the decision of the Local Government Standards Panel set aside
Category:	B
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	MICHELLE TRACEY STECK LOCAL GOVERNMENT STANDARDS PANEL ATTORNEY GENERAL FOR WESTERN AUSTRALIA
Catchwords:	Local government Minor breach Standards of behaviour expected of a councillor Breach of reg 7(1)(b) Local Government (Rules of Conduct) Regulations 2007 (WA) Improper use of a person's office as a council member Causing detriment to a person
Legislation:	Local Government (Administration) Regulations 1996 (WA), reg 14, reg 14(1), reg 14(2) Local Government (Rules of Conduct) Regulations 2007 (WA), reg 3, reg 4, reg 7(1), reg 7(1)(b) Local Government Act 1995 (WA), s 5.103(1), s 5.23, s 5.23(2), s 5.104, s 5.105(1), s 5.105(1)(a), s 5.106, s 5.107, s 5.110, s 5.110(6)(b), s 5.110(6) State Administrative Tribunal Act 2004 (WA), s 31(1)
Case References:	Treby and Local Government Standards Panel [2010] WASAT 81
Orders:	On the application determined by Deputy President, Judge Sharp on 9 August 2011, it is ordered that: 1. The application for review is upheld. 2. The decision of the Local Government Standards Panel that Michelle Tracey Steck committed a minor breach under the Local Government Act 1995 (WA) is set aside.
Summary:	Councillor Michelle Tracey Steck is a member of the Council of the City of Bunbury. In December 2010, the Local Government Standards Panel determined that Councillor Steck had breached reg 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007 (WA) and thereby committed a minor breach under s 5.105(1)(a) of the Local Government Act 1995 (WA). The Standards Panel's findings relate to the form and publication of a Notice of Motion which Councillor Steck prepared and sent to the Council's Chief Executive Officer for inclusion in the agenda for a subsequent meeting of Council. The Standards Panel considered that this constituted an improper use by Councillor Steck of her office as council member to cause detriment to a senior employee of the Council. The Standards Panel ordered Councillor Steck to make a public apology to the person concerned. Councillor Steck applied to the Tribunal for a review of the Standards Panel decision. The Tribunal considered the content of Councillor Steck's Notice of Motion, and concluded that while the wording of the Notice of Motion constituted an improper use of her office as Councillor, she did not send the Notice of Motion to the CEO with the intention of causing detriment to others. The Tribunal therefore set aside the decision of the Standards Panel that a minor breach had occurred.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM : DEVELOPMENT & RESOURCES ACT : LOCAL GOVERNMENT ACT

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: [2011] WASAT 117
Decision Date: 9 AUGUST 2011

CaseChat Overview and Summary

The respondent, a local government councillor, was found to have breached the rules of conduct by improperly using his position to cause detriment to a member of the public. The applicant, the Local Government Standards Panel, sought to uphold the decision to remove the respondent from office. The matter was heard in the Supreme Court of Western Australia. The court was required to determine whether the respondent's actions constituted a minor breach of the regulations, and whether the penalty imposed was appropriate.

The court found that the respondent had indeed breached the regulations by using his position to cause detriment to a member of the public. However, the court found that the breach was minor and did not warrant removal from office. The court found that the penalty imposed by the Standards Panel was excessive and not in line with the principles of proportionality and reasonableness. The court held that the respondent's actions were not of a serious nature and did not warrant the severe penalty of removal from office.

The court set aside the decision of the Standards Panel and ordered that the respondent be reinstated to his position as a councillor. The court held that the appropriate penalty for a minor breach of the regulations was a reprimand or a fine, rather than removal from office. The court found that the Standards Panel had erred in imposing a penalty that was disproportionate to the nature of the breach. The court held that the penalty imposed was not in line with the principles of proportionality and reasonableness, and was therefore invalid.

The court made an order upholding the application and setting aside the decision of the Local Government Standards Panel. The court ordered that the respondent be reinstated to his position as a councillor, and that a reprimand or fine be imposed as an appropriate penalty for the minor breach of the regulations. The court held that the penalty of removal from office was excessive and not in line with the principles of proportionality and reasonableness. The court found that the appropriate penalty for a minor breach of the regulations was a reprimand or a fine, rather than removal from office.

Orders

Orders of the court

Application upheld and the decision of the Local Government Standards Panel set aside

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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