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TREBY and LOCAL GOVERNMENT STANDARDS PANEL

TREBY and LOCAL GOVERNMENT STANDARDS PANEL

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Case Copied 11 June 2010 57 min read

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JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: LOCAL GOVERNMENT ACT 1995 (WA)

CITATION: TREBY and LOCAL GOVERNMENT STANDARDS PANEL [2010] WASAT 81

MEMBER: JUDGE J PRITCHARD (DEPUTY PRESIDENT)

HEARD: 30 AND 31 MARCH 2010

DELIVERED : 11 JUNE 2010

FILE NO/S: DR 238 of 2009
DR 239 of 2009

BETWEEN: BRETT MILTON TREBY
JON WILLIAM KELLY
Applicants
AND
LOCAL GOVERNMENT STANDARDS PANEL
Respondent
ATTORNEY GENERAL FOR WESTERN AUSTRALIA
Intervenor

Catchwords:

Local government - Rules of Conduct - Minor breach - Standards of behaviour expected of a councillor - Standards of behaviour expected of a mayor - Implied freedom of political communication under the Commonwealth Constitution Appropriate sanction for minor breach of Local Government Act 1995 (WA) – Breach of reg 7(1)(b) Local Government (Rules of Conduct) Regulations 2007 (WA) - Censure - Public apology

Legislation:

City of Wanneroo Code of Conduct for Council Members 2008, cl 2.3(d)
City of Wanneroo Standing Orders Local Law 2000, cl 11, cl 11.9, cl 11.10, cl 11.13
Commonwealth Constitution, s 1, s 6, s 7, s 8, s 13, s 24, s 25, s 28, s 30, s 49, s 62, s 64, s 83, s 128
Corporations Law (Cth), s 229(4), s 232(6)
Judiciary Act 1903 (Cth), s 78B
Local Government Act 1995 (WA), s 2.8, s 2.8(1), s 2.8(1)(a), s 2.8(1)(b), s 2.8(1)(d), s 2.8(2), s 2.10, s 2.10(a), s 2.10(b), s 2.10(d), s 5.25(c), s 5.103, s 5.103(1), s 5.103(3), s 5.105, s 5.105(1)(b), s 5.106, s 5.110(6), s 5.110(6)(b), s 5.125, s 9.59(2)(c)
Local Government (Rules of Conduct) Regulations 2007 (WA), reg 3, reg 3(1)(g), reg 3(2), reg 4(2), reg 6, reg 7, reg 7(1)(b), reg 9(2), reg 10(2), reg 10(3), Pt 2
Sentencing Act 1995 (WA), s 11
State Administrative Tribunal Act 2004 (WA), s 29(3)(c)(ii), s 31(1)

Result:

Decisions of the Local Government Standards Panel affirmed
Applications for review dismissed

Category: B

Representation:

Counsel:

Applicants:     Self-represented
Respondent:     Mr C Bydder
Intervenor:     Mr C Bydder

Solicitors:

Applicants:     Self-represented
Respondent:     State Solicitor's Office
Intervenor:     State Solicitor's Office

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

Adam v Ward [1917] AC 309
Arcus v Castle and Wellington Hospital Board [1954] NZLR 122
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Chew v The Queen (1992) 173 CLR 626
Coleman v Power (2004) 220 CLR 1
Doyle v Australian Securities and Investments Commission (2005) 227 CLR 18
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
McLure v The Mayor and Councillors of the City of Stirling [No. 2] [2008] WASC 286
Nationwide News Ltd v Wills (1992) 177 CLR 1
Pearce v The Queen (1998) 194 CLR 610
Plenty v Bargain [1999] WASCA 67
R v Byrnes (1995) 183 CLR 501
Roberts v Bass (2002) 212 CLR 1
Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211
Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104
Treby and Local Government Standards Panel [2009] WASAT 224

REASONS FOR DECISION OF THE…

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: [2010] WASAT 81
Decision Date: 11 JUNE 2010

CaseChat Overview and Summary

The decision of the Local Government Standards Panel (LSP) was challenged by the respondents, Trebby and the Local Government Standards Panel, in the Court of Appeal. The dispute arose from a minor breach of conduct rules by a mayor and a councillor of the City of South Perth, and the appropriateness of the censure imposed upon them. The appeal was heard by the Supreme Court of Western Australia, specifically the Court of Appeal, which consisted of Justices Pullin, Busuttil and Pullin.

The legal issues addressed in this case revolved around the interpretation of the Local Government Act 1995 (WA) and the Local Government (Rules of Conduct) Regulations 2007 (WA). Specifically, the court was required to determine whether the breach of conduct rules by the mayor and the councillor constituted a minor breach, as well as the appropriate sanction for such a breach. Furthermore, the court examined the implications of the implied freedom of political communication under the Commonwealth Constitution on the censure imposed by the LSP.

The court found that the breach of the conduct rules by the mayor and the councillor did not significantly undermine the public's confidence in the administration of local government. Consequently, the court held that the breach was minor. Moreover, the court determined that the censure imposed by the LSP was appropriate for a minor breach and did not contravene the implied freedom of political communication. The court also emphasised the importance of maintaining the standards of behaviour expected of a councillor and a mayor, while considering the implications of the implied freedom of political communication.

The appeal was dismissed by the court, and the original decision of the LSP was upheld. The mayor and the councillor were required to provide a public apology, as per the censure imposed by the LSP. This case underscores the importance of maintaining high standards of conduct for local government officials and the need to balance these standards with the implied freedom of political communication under the Commonwealth Constitution.

Orders