| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : LOCAL GOVERNMENT ACT 1995 (WA) CITATION : STECK and LOCAL GOVERNMENT STANDARDS PANEL [2011] WASAT 117 MEMBER : JUDGE T SHARP (DEPUTY PRESIDENT) HEARD : 22 JUNE 2011 DELIVERED : 9 AUGUST 2011 FILE NO/S : DR 63 of 2011 BETWEEN : MICHELLE TRACEY STECK Applicant
AND
LOCAL GOVERNMENT STANDARDS PANEL
Respondent
ATTORNEY GENERAL FOR WESTERN AUSTRALIA
Intervenor
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
(Page 2)
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) Result: Application upheld and the decision of the Local Government Standards Panel set aside Category: B
Representation: Counsel:
Applicant : Mr J Skinner
Respondent : Ms D Quinlan
Intervenor : Ms D Quinlan
Solicitors:
Applicant : Jackson McDonald
Respondent : State Solicitor's Office
Intervenor : State Solicitor's Office
Case(s) referred to in decision(s):
Treby and Local Government Standards Panel [2010] WASAT 81
(Page 3)
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 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. 2 Councillor Steck applied to the Tribunal for a review of the Standards Panel decision. 3 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.
Introduction 4 The applicant is a member of the council of the local government of the City of Bunbury (Council). On 16 December 2010, the respondent (Standards Panel) made a finding that the applicant had committed a minor breach under s 5.105(1)(a) of the Local Government Act 1995 (WA) (LG Act) in that she made an improper use of her office as a councillor to cause detriment to Mr Geoffrey Klem, a senior employee of the Council. The applicant was ordered by the Standards Panel to publicly apologise to Mr Klem. The orders were made by the Standards Panel pursuant to s 5.110(6)(b) of the LG Act. 5 The applicant seeks a review by the Tribunal of the Standards Panel's decision. (Page 4)
6 At the hearing before the Tribunal on 22 June 2011, the applicant was represented by Mr J Skinner. The Standards Panel was represented by Ms D Quinlan of the State Solicitor's Office. The Standards Panel, however, did not play an active role in the proceeding. Its role was confined to producing a document setting out the issues, facts and contentions it considered arose in the proceeding. The Tribunal agrees that this limited participation is appropriate because, under s 31(1) of the State Administrative Tribunal Act 2004 (WA), the Standards Panel could be invited by the Tribunal to reconsider its decision. The Tribunal was therefore assisted by the intervention of the Attorney General of Western Australia who, through Ms Quinlan, acted as a contradictor in the proceeding. 7 The Standards Panel handed in its bundle of documents (Respondent's Bundle). The applicant filed a witness statement (AWS) and was crossexamined by counsel for the intervenor. The applicant also filed witness statements from Mr Ross Slater (RSWS) and from Ms Karen Steel (KSWS).
Background 8 At a briefing session for councillors on Tuesday, 16 February 2010, the councillors present were given a copy of a document titled 'Amendments to the Greater Bunbury Region Scheme' that was prepared by a Ministerial Taskforce and issued by the Department for Planning and Infrastructure (DPI).
The email exchange 9 On Wednesday, 17 February 2010 at 7.41 am, the applicant sent an email to the City's Chief Executive Officer (CEO) on the subject 'Eastside' (First email). The substantive text of the First email read: I believe that the plans outlining the Eastside are in the Library, I have also been informed that the Council Executives, yourself and the Mayor were invited to the release on Monday at council. If this is the case, I am just wondering why councillors were not invited to the Eastside presentation? Was it by the Ministers request that councillors were not invited, or was it the request of the Mayor or the Council Executives. I am also under the understanding that further details are being released today is that correct? (Page 5)
Again if so why aren't the councillors invited? 10 On 17 February 2010 at 12.29 pm, the CEO sent an email to the applicant, apparently in reply to the First email. The substantive text of the CEO's email read: I don't know anything about a meeting on Monday. As far as I am aware the report presented last night was embargoed by DPI for our Tuesday briefing session to enable councillors to have the first opportunity to be briefed on this matter. There was a meeting held at the Tower today with key stakeholders eg boating clubs and the like. Mike Schram from DPI had no issue if any councillors wanted to attend this meeting. He also advised that the meeting and information provided would be the same as provided at the councillor briefing. This will apply to any other meetings to be held during the public exhibition period. There are no further details to be released other than advising all that is interested of the proposed amendments and asking for submissions from the public. The submissions will be evaluated by the WAPC and will make some recommendations at the end of process. All submissions will be available for public inspection. The public has up to the 17th May to make their submission/s. I expect Council will make a submission at the appropriate time. 11 On 17 February 2010 at 7.51 am the applicant sent an email to the CEO on the subject 'Greater Bunbury Regional Scheme' (Second email). The substantive text of the email read: The document we were given last night 'Amendments to the Greater Bunbury Region Scheme' could have been given to councillors with the briefing notice circular. I have asked many times that council engage in the practice of providing supporting documents with each briefing notice, clearly, this is not occurring. I also question why this document was tabled at a briefing session and not at committee? I am sure the community would be wanting access to this document and would also welcome the opportunity to sit in on any other relevant information. 12 On 17 February 2010 at 12.35 pm the CEO sent an email to the applicant on the subject 'Greater Bunbury Regional Scheme', apparently in reply to the Second email. The substantive text of the email read: (Page 6)
13 On Thursday, 18 February 2010 at 10.52 am the applicant sent an email to the CEO in reply. The substantive text of the applicant's email read: Thank you for your reply. I know that the documents are available from the DPI, through my own research first thing Wednesday morning. When I left the council meeting on Tuesday night, I methodically checked every website in relation to the Bunbury Eastside Project and the GBRS. I was very annoyed to see that not one site had bothered to update the information on the sites. Not one site bothered to give an indication when the documents will likely be available. Councillors and the community were snubbed by their own Mayor, and our own Planning Executive. The Minister Mr John Castrilli, John Day and Brenden Grylls, and the other members on the task force also snubbed the community, by not providing information. I am just referring to information that will keep the community and councillors aware that the document and meetings are available February 15th, it's called keeping the community in the loop. Information is the most valued asset of any community and too many times this community is not respected enough by providing enough information at the right time. I know that the Mayor and Mr Klem were fully aware of the intended briefing sessions that were being made available. I for the life of me do not understand and do not except any excuse for not referring to them to council on the pink paper prior to the meeting. It could be considered a conflict of interest and not acting in accordance with the Local Government Act. Put simply we were not informed. I respectfully will be sending you a motion shortly. (Page 7)
The Notice of Motion 14 On 18 February 2010 the applicant sent to the CEO a notice setting out the motions that she intended putting at the next meeting of Council (Notice of Motion) that read: MOTIONS ON NOTICE ITEM Greater Bunbury Regional Scheme Amendments/Eastside 1. That Council immediately update the council website with the following: a) Showing the revised Eastside Plan and where documents can be collected from. b) Provide an indication of when the Greater Bunbury Regional Scheme Amendment submission period will close. c) Encourage citizens to have their say; ie If they are happy or unhappy with the proposal then fill in the submission form. In support of the motion: Council has not posted any updated press release since the start of the New Year. This issue is too important to the community not to be on the front foot in providing information. One of the greatest issues always presenting to council is information exchange from the council to the community. 2. a) That councillors seek an immediate apology from the Mayor and the Executive officer of planning Mr Geoff Klem, for not advising the community and it's councillors that the documents for Eastside and GBRS would be made available to the Public and Council from February 15th. Further, that several meetings would be made available to the community with the session times and finally, the community presentation intended at the Lord Forrest. In support of the motion: The Mayor and Mr Klem are members of the Eastside Taskforce and have attended regular meetings throughout the process. The information that has been presented to councillors up to now has been very vague. Councillors were totally uninformed of the intended release dates and the community planned meetings, when both could have provided that information. To hide behind an embargo of the taskforce is not acceptable, as their obligation is to the council, councillors and the community. (Page 8)
The Mayor in the past has occupied positions on the Port Authority and the Water Board and in both of these positions, when needed has provided information to councillors. If they are not prepared to apologise then the following motion be put: b) That councillors seek legal opinion on whether the Mayor and Executive Officer Mr Geoff Klem acted within accordance of the Local Government Act by not disclosing information to councillors and on when information would be available in regards to the GBRS and Eastside, and whether they have acted within a conflict of interest and did not declare that interest. In support of the Motion: Council needs to identify the legal rights of Councillors and staff when positions are held on specially convened taskforces such as the current Eastside and the GBRS. Remember, ALL councillors are liable we do not have Parliamentary Privilege in Protection on decisions and information. d) That councillors, be provided with written information on insurance coverage in relation to these matters, including appointments to other boards or commissions. 3. That a formal letter from council be written to the Taskforce indicating council's disappointment with how the taskforce has managed information going to both council and the community. Along with a strong request for the Taskforce to update their website as the last posting was from its first meeting in May 2009. In support of the Motion: The Eastside Development was such a divided issue within the community last time I would have been expecting the task force to manage communication during the release period more effectively. A formal letter should have been written to the CEO and council. By choosing to have an "embargo of communication" the taskforce has possibly already antagonised the community. Councillors were even unaware of the release date and the community meetings planned, even though specially targeted persons/groups in the community were invited to these smaller meetings, prior to councillors even being informed. To minimise misunderstandings or possible mistrust between the task force and the community and also to facilitate more effective communication the website should be upgraded immediately. 15 Item 1 of the Notice of Motion is referred to in these reasons as the First Motion, Item 2 (which is in two parts) as the Second Motion and Item 3 as the Third Motion. (Page 9)
16 Item 2 is on the face of the Notice of Motion in fact in three parts, but Item 2(d), which is the paragraph immediately preceding Item 3, was not mentioned by the Standards Panel in its findings and was possibly included in the Notice of Motion in error. The Tribunal does not propose to give Item 2(d) any further consideration.
Publication of the Notice of Motion on Council's website 17 Council has a committee (Standing Committee), made up of all of the councillors, that meets in the week prior to a meeting of Council, the purpose of which is to review recommendations from Council's advisory committees and/or executive management before they are submitted to Council. 18 At some time during the period from 18 February 2010 to 23 February 2010 the agenda for the meeting of the Standing Committee to be held on 23 February 2010 was sent to all councillors. Significantly, a copy of it was made public by its placement on the Council's website. That agenda included at item 12.2 the full text of the Notice of Motion. 19 The minutes of the Standing Committee's meeting held on 23 February 2010 record that the meeting commenced as an 'open' meeting with about eight members of the public present. However, councillors, including the applicant, then voted in favour of members of the public being excluded from the meeting while the Notice of Motion was discussed. 20 The Standards Panel subsequently received complaints from, respectively, Mr Klem and Councillor Spencer that the applicant had committed a minor breach in that she made improper use of her office as Council member to cause detriment to Mr Klem. The basis of the complaint in both cases seems to be that the applicant gave written notice of her intention to move a motion at a meeting of Council, with the intent and purpose that its contents would be made publicly available in the agenda for the meeting or discussed publicly.
The Standards Panel's findings 21 On 16 December 2010, the Standards Panel made a finding that the applicant had committed a minor breach as follows: 1. On 18 February 2010, the applicant made improper use of her office of council member to cause detriment to Mr Klem in contravention of reg 7(1)(b) of the Local (Page 10)
2. The detriment that the applicant intended to cause to Mr Klem when she sent to the CEO her written notice of intention to move a motion at the meeting of Council on 2 March 2010 was that at least some of the people in the Council's district would think less favourably of him. 22 The Standards Panel ordered that the applicant apologise publicly to Mr Klem, either at the next meeting of Council or by publishing an apology in the South Western Times. The terms of the apology were prescribed by the Standards Panel.
The relevant statutory provisions 23 Section 5.104 of the LG Act enables regulations to be made prescribing rules of conduct for council members. 24 Regulation 7(1) of the Regulations (being regulations made under s 5.104 of the LG Act) provides: 25 Section 5.105(1) of the LG Act provides: Breaches by council members (Page 11)
(1) A council member commits a minor breach if he or she contravenes - 26 Under s 5.106 of the LG Act, the standard of proof in relation to findings of a breach is that it is more likely that the breach occurred than it did not occur. 27 Section 5.107 to s 5.110 of the LG Act set out the procedure for dealing with alleged minor breaches by council members, including the role of the Standards Panel in determining whether or not a minor breach has occurred. 28 Section 5.110(6) of the LG Act provides that the Standards Panel may deal with a minor breach by: (a) dismissing the complaint; (b) ordering that - (c) ordering 2 or more of the sanctions described in paragraph (b). 29 Section 5.103(1) of the LG Act requires every local government to prepare and adopt a code of conduct to be observed by council members, committee members and employees. 30 The Council has adopted a code of conduct pursuant to s 5.103(1) of the LG Act (Code of Conduct). It relevantly provides: 4.1 Personal behaviour (a) Council members [and] Committee Members … will: (Page 12)
(i) act, and be seen to act, properly and in accordance with the requirements of the law and the terms of this Code; (ii) perform their duties impartially and in the best interests of the City of Bunbury uninfluenced by fear or favour; (iii) act in good faith (ie. honestly, for the proper purpose, and without exceeding their powers) in the interests of the City of Bunbury and the community; (iv) make no allegations which are improper or derogatory (unless true and in the public interest) and refrain from any form of conduct, in the performance of their official or professional duties, which may cause any reasonable person unwarranted offence or embarrassment; and (v) always act in accordance with their obligation of fidelity to the City of Bunbury. … 4.2 Honesty and integrity 31 The Tribunal notes that a breach of the Code of Conduct is not a minor breach for the purposes of s 5.105(1) of the LG Act. 32 Council also has standing orders, the City of Bunbury Standing Orders Local Law, a breach of which is a minor breach under s 5.105(1) of the LG Act. Standing Order 2.3 provides that all Council meetings and meetings of any committee to which Council has delegated a local government power or duty are open to members of the public, except when dealing with confidential matters as provided by s 5.23 of the LG Act. 33 The Standing Orders are a local law as to conduct for the purpose of reg 4 of the Regulations. (Page 13)
The issues arising on the review 34 The issues which require resolution concern the proper construction of reg 7(1)(b) of the Regulations and whether the applicant by sending her Notice of Motion to the CEO breached that regulation. 35 The applicant does not dispute that she was a member of Council in February 2010, she does not dispute that she sent the Notice of Motion to the CEO, and she does not dispute that the sending of the Notice of Motion constituted a use of her office as a member of Council. Accordingly, the issues to be resolved by the Tribunal are as follows: Was the sending of the Notice of Motion to the CEO an improper use of the applicant's office as a council member? 36 In Treby and Local Government Standards Panel [2010] WASAT 81 (Treby), Judge Pritchard, as she was then, examined in detail the meaning of the word 'improper' used in reg 7(1)(b) of the Regulations. Her Honour made the following observations and findings: 1. The word 'improper' is used in reg 7(1)(b) as an adjective to describe the use of a councillor's office. The term 'improper' is not defined in the LG Act or the Regulations. 2. According to the Shorter Oxford English Dictionary, the meaning of 'improper' includes 'unsuitable' and 'inappropriate'. Her Honour said that the meaning of the word 'improper' could not be considered in isolation, but rather should take its flavour from the surrounding context, which includes an assessment of what is involved in role of a councillor, according to the LG Act and the Regulations, and the instruments made under them. The role of a councillor includes representing the interests of electors, ratepayers and residents of the district, providing leadership and guidance to the (Page 14)
(Page 15)
(c) Impropriety may arise in a number of ways. It may consist of an abuse of power, that is, if a councillor uses his or her position in a way that is inconsistent with the discharge of the duties arising from that office or employment. Alternatively, impropriety will arise from the doing of an act which a councillor knows or ought to know that he or she has no authority to do. (d) In the case of impropriety arising from an abuse of power, a councillor's alleged knowledge or means of knowledge of the circumstances in which the power is exercised and his or her purpose or intention in exercising the power will be important factors in determining whether the power has been abused. (e) A councillor's use of his or her office can be improper even though it is for the purpose or with the intention of benefiting Council. 5. The standards of conduct that would be expected of a member of a local government can be discerned from the fiduciary obligations which council members owe to their councils and in a range of statutory and non-statutory instruments, including the LG Act itself, and the codes of conduct, local laws as to conduct, and regulations which the LG Act contemplates may be made to regulate the conduct of members of local government. Such instruments might include reg 3 of the Regulations (which contains general principles to guide the behaviour of council members), the Standing Orders and the Code of Conduct. 6. A failure to comply with any of these provisions would constitute a breach of the standards of conduct that would be expected of a person in the position of a councillor by reasonable persons with knowledge of the duties, powers and authority of that person's position as a councillor and the circumstances of the case, and that would therefore suggest an improper use of that office. (Page 16)
37 These observations and findings continue to reflect the way in which the Tribunal construes the meaning of the expression 'improper use of a person's office as a council member'. 38 The Standards Panel observed in its findings (Respondent's Bundle page 7) that the mere lodgement of a notice of motion is not by itself an improper use of a councillor's office, but that the lodgement of a notice of motion for an improper purpose may, in appropriate circumstances, be an improper use of the councillor's office. 39 The Standards Panel continued by saying that, had the Notice of Motion been limited to the First Motion, then there would 'have been nothing untoward in her lodgement of that restricted Notice of Motion' (Respondent's Bundle page 8). The Tribunal agrees with this statement. The Standards Panel observed (Respondent's Bundle page 45) that it is in fact perfectly acceptable for a council member to bring a matter to the attention of Council by lodging an appropriate notice of motion when a council member has doubt about the facts or lawfulness of a proposed or actual process or decision by Council, a relevant committee or otherwise by or on behalf of the local government. 40 The Standards Panel did not comment on the Third Motion, but the Tribunal also regards the Third Motion as unobjectionable. 41 The Standards Panel considered that both parts of the Second Motion contain statements that constitute breaches of cl 4.1(a)(iv) of the Code of Conduct which, as the Tribunal has already mentioned earlier in these reasons, provides that councillors must 'make no allegations which are improper or derogatory (unless true and in the public interest) and refrain from any form of conduct, in the performance of their official or professional duties, which may cause any reasonable person unwarranted offence or embarrassment'. 42 First, it was the Standards Panel's view that a reasonable person would view the statement by the applicant in the first part of the Second Motion that Council should 'seek an immediate apology from the Mayor and … Mr Geoff Klem for not advising the community' that the documents for Eastside and the Greater Bunbury Regional Scheme 'would be made available to the Public and Council from 15 February 2010', as an allegation by the applicant that Mr Klem was under some particular obligation which he had failed to observe. 43 Second, in regard to the applicant's statement in support of the first part of the Second Motion that 'Councillors were totally uninformed of the (Page 17)
intended release dates and the community planned meetings when [the Mayor and Mr Klem] could have provided that information', the Standards Panel considered that a reasonable person would view that statement as including an allegation by the applicant that, prior to 15 February 2010, Mr Klem was aware of and was at liberty to make public the information referred to and that he should have done so. 44 Third, the Standards Panel took the view that the applicant's statement, contained in support of the first part of the Second Motion, 'To hide behind an embargo of the taskforce is not acceptable, as their obligation is to the Council, councillors and the community', was an allegation by the applicant that Mr Klem had contravened an obligation. 45 Finally, when the applicant said in the second part of the Second Motion 'if they are not prepared to apologise then the following motion be put', namely that Council seeks a legal opinion as to whether the Mayor and Mr Klem acted within the LG Act and whether they acted with a conflict of interest and did not declare that interest, the Standards Panel considered that a reasonable person would view that as an allegation by the applicant that Mr Klem failed to disclose information which he was under an obligation to disclose, may have acted with a conflict of interest and may have acted contrary to the provisions of the LG Act. 46 The applicant in response said in her witness statement (AWS, para 32) that in the Second Motion, she was suggesting that Council seek (the applicant's emphasis) an apology, but she says that she did not assert that an apology was due. She says that this is clear from the second part of the Second Motion, namely that if the Mayor and Mr Klem were not prepared to apologise then councillors should seek a legal opinion on whether or not they had acted in accordance with the LG Act. 47 The Tribunal has some difficulty with this. If the applicant had a suspicion that there had been a breach of the LG Act, then surely she could not have believed that an apology would have cured that breach. Clearly, the intention of the motion was to extract an apology from Mr Klem and the Mayor, and therefore presumably to gain an admission from them that there had been some transgression on their part. If the apology, and therefore the admission, was not forthcoming, then she would pursue her claim that the LG Act had been breached. This, in the Tribunal's view, amounts in substance to an allegation of wrongdoing which the applicant did not know to be true. (Page 18)
48 Further, the Second Motion, read as a whole, suggests that there had in fact been some impropriety on the part of the Mayor and Mr Klem and if they were not prepared to, in effect, admit to that impropriety, then the consequence would be that further legal proceedings would follow. This is to some extent borne out by the applicant in her witness statement (AWS, para 29) when she said that she 'believed that their [those of Mr Klem and the Mayor] obligations to Council and the community in this respect were being overlooked in favour of their perceived responsibilities to the Bunbury Water Front Taskforce'. 49 The Tribunal agrees with the Standards Panel's finding that the applicant made an improper use of her office as councillor by lodging the Notice of Motion with the CEO because it contained, what are, in substance, allegations which more likely than not breached cl 4 of the Code of Conduct.
Did the applicant believe that the intended result would be to cause detriment to others? 50 Even if the Notice of Motion involves conduct which is judged to be an improper use of a councillor's office, that would not result in a contravention of reg 7(1)(b) unless that improper use of office is also made to cause detriment to another person. 51 In Treby, Judge Pritchard, as she then was, also considered the meaning of the phrase 'to cause detriment' and drew the following conclusions: 1. The ordinary and natural meaning of the word 'detriment' is loss or damage done or caused to, or sustained by, any person or thing: Shorter Oxford English Dictionary. 2. The meaning of 'loss' is the 'diminution of one's possessions or advantages; detriment or disadvantage involved in being deprived of something, or resulting from a change in conditions', while 'damage' means 'loss or detriment to one's property, reputation etc' and 'harm done to a thing or person': Shorter Oxford English Dictionary. 3. A contravention of reg 7(1)(b) does not depend on actual detriment being suffered by a person. However, it must be established that the councillor believed that the (Page 19)
intended result of his or her conduct would be that the other person would suffer detriment. 52 Once more, this continues to reflect the approach the Tribunal takes when considering the expression 'to cause detriment to' in reg 7(1) of the Regulations. 53 The Standards Panel's finding in this respect is that the applicant was 'seeking to embarrass and humiliate the Mayor and Mr Klem in the eyes of the people in the [City of Bunbury] District' (Respondent's Bundle, page 11) and thus intended to cause detriment to Mr Klem. 54 The basis of this finding is that the applicant gave the Notice of Motion to the CEO 'with the intent and purpose that its contents would be made publicly available in the agenda for the City's Council (Standing Committee) held on 23 February 2010' (Respondent's Bundle, page 11). 55 This in turn is based on what the Standards Panel refer to as 'the City's customary practises' (Respondent's Bundle, page 5 and page 10), namely that an intended motion and the lodging member's comments in support of it, are put on a publicly available agenda for the relevant Standing Committee meeting and then the motion is discussed at that Standing Committee meeting, either in open or closed to the public. 56 If the applicant, when she sent the Notice of Motion to the CEO, believed that by doing so, the Notice of Motion would appear on Council's website, then the Tribunal would agree with the Standards Panel that her intent in so doing was to cause at least some of the people in the Bunbury district to think less favourably of Mr Klem. 57 However, there is no evidence to support a contention that these 'customary practices' would invariably lead to every notice of an intended motion being made public. On the contrary, while reg 14(1) of the Local Government (Administration) (Regulations) 1996 (WA), provides that notice papers and the agenda relating to any council or committee meetings are to be made available to members of the public, reg 14(2) denies members of the public the right to inspect information if, in the CEO's opinion, the meeting or that part of the meeting to which the information refers is likely to be closed to members of the public under s 5.23(2) of the LG Act. 58 If the applicant expected when she sent the Notice of Motion to the CEO that the CEO would then make a decision as to whether or not to (Page 20)
put the terms of the Notice of Motion onto Council's website, then it cannot be said that she intended to cause detriment to Mr Klem. There is no doubt that the applicant when sending the Notice of Motion to the CEO could have drawn the CEO's attention to the fact that he may wish to consider not making the Notice of Motion available for inspection by members of the public. However, she did not do so, and the question is then, did the applicant believe that the result of this omission would be that the form of the Notice of Motion would thus appear on Council's website? 59 The Standards Panel took the view that she did so believe, but the Tribunal has nothing before it to support this view. 60 On the other hand, the applicant submits that the existence of reg 14(2) has led the applicant and at least two other members of council to hold a different view of the practices of publishing information about a meeting on the Council's website. 61 The applicant's evidence, which was unchallenged, is as follows: I am aware that under regulation 14(1) of the Local Government (Administration) Regulations 1996, a local government is to ensure that notice papers agendas, reports and other documents relating to a council or committee meeting are to be made available for inspection to members of the public, but under regulation 14(2) this does not apply if, in the CEO's opinion, the meeting or part of the meeting to which the information relates is likely to be closed to members of the public. It has always been my understanding that at the City of Bunbury: (a) the responsibility to assess whether a proposed motion should be treated as confidential, for the purpose of preparing the agenda for the Council or Committee meeting, lay with the CEO in consultation with the Mayor or other presiding member at the meeting, and not with the councillor proposing the motion; and (b) if the CEO or Mayor formed the opinion that a motion should be treated as a confidential item and dealt with at a meeting closed to the public, they would ensure that related notice papers, agendas, reports and other documents to be tabled were not made available for public inspection. … In my experience, the practice of the CEO and/or the Mayor is to make decisions on confidentiality when setting meeting agendas. There have been many examples of proposed motions that have been noted on meeting agendas as being matters that will be dealt with at a closed meeting, and (Page 21)
for which the motion and any supporting information or attachments are circulated separately to Councillors. While I was certainly aware of the City's customary practice, as noted by the Respondent in its Finding and Reason for Finding, of including proposed motions in a publicly available agenda prior to a Committee meeting, in light of the above I did not believe that this imposed on me an obligation to direct the CEO's attention to any aspects of the Notice of Motion that ought to have been dealt with confidentially by the Committee, during a closed meeting. (AWS, paras 23 24 and paras 26 27). 62 Under crossexamination, the applicant was asked whether she considered, at the time when she sent the Notice of Motion to the CEO, that the meeting of the Standing Committee should be closed to the public. She replied 'I never do, I never used to, not ever. I always left that to the CEO'. (T: [9], [22.6.11]). 63 This is supported by evidence given to the Tribunal by Ms Karen Steele, who states that she has been a councillor since October 2009. She says in her witness statement: I understand Cr Steck says that under both the Local Government (Administration) Regulations and the City's own practice, the responsibility to assess whether a proposed motion should be dealt with at a closed meeting lay with the CEO in consultation with the Mayor or other presiding member at the meeting and that if the CEO or Mayor formed the opinion that a motion should be dealt with at a closed meeting, they would ensure that related notice papers, agendas, reports and other documents to be tabled were not made available for public inspection. I confirm that in my experience as a Councillor at the City this has always been the practice at the City the CEO and the presiding member for a meeting (usually the Mayor) review the motions proposed for a meeting and determine whether any motions should be dealt with at a closed meeting at the time of finalising the agenda for the meeting. This then determines what information is included in the publicly available agenda and papers for the meeting. I did not know it is up to Councillors to indicate whether or not any motion they submit should be dealt with at a closed meeting. Prior to the complaint made against Cr Steck I did not indicate, when submitting a notice of motion to the CEO, whether or not I considered that the motion should be dealt with at a closed meeting. I left that consideration to the CEO and presiding member. … (Page 22)
64 Evidence was also provided to the Tribunal from Mr Ross Slater, who states that he has been a councillor since October 2007, and he makes the same point in exactly the same words (RSWS, paras 6 8). 65 On balance, the Tribunal concludes that the applicant did not expect that the form of the Notice of Motion would be posted on Council's website merely by her submitting it to the CEO and therefore it cannot be said that the intended result of her conduct would be to cause Mr Klem to suffer detriment.
Conclusion 66 The Tribunal is satisfied that the evidence in this case supports the conclusion that it is more likely than not that the applicant: 67 The Tribunal therefore upholds the applicant's application and sets aside the decision of the Standards Panel that the applicant had committed a minor breach under the LG Act.
Orders The Tribunal makes the following orders. 1. The application for review is upheld. (Page 23)
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. |