TREBY and LOCAL GOVERNMENT STANDARDS PANEL - [2010] WASAT 81

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 TRIBUNAL:

Summary of Tribunal's decision

In late 2008 and early 2009 the Local Government Standards Panel determined that two members of the Council of the City of Wanneroo, Mr Kelly and Mr Treby, the Mayor and Deputy Mayor, respectively, of the City, had breached the City of Wanneroo Standing Orders Local Law 2000 and the Local Government (Rules of Conduct) Regulations 2007 (WA). The Panel's findings related to remarks made by Mr Kelly and Mr Treby during a Special Meeting of the Council. Those remarks responded to comments made by fellow Councillors who opposed the adoption of the proposed 2008/2009 Annual Budget of the City. The Panel found that in making the remarks Mr Kelly and Mr Treby breached cl 11.9 of the City of Wanneroo Standing Orders Local Law 2000 and reg 7(1)(b) of the Regulations. The Panel ordered both Mr Kelly and Mr Treby to make a public apology in terms prescribed by the panel, and ordered that Mr Kelly be censured.
Mr Kelly and Mr Treby applied to the Tribunal for a review of the Panel's decisions that they had committed minor breaches of the Act, and the sanctions that were imposed upon them.
In preliminary proceedings, Senior Member Parry found that Mr Kelly and Mr Treby had each committed a minor breach of cl 11.9 of the City of Wanneroo Standing Orders Local Law 2000. It remained for the Tribunal in the present proceedings to consider whether the Panel made the correct and preferable decision when it found that each of the applicants breached reg 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007 (WA), and determined the sanctions to be imposed upon Mr Kelly and Mr Treby.
The Tribunal considered the nature of the remarks made by Mr Kelly and Mr Treby, the meaning of 'improper' and the meaning of 'detriment' in the context of reg 7(1)(b) and whether that regulation applies to conduct of councillors during debates. Mr Kelly and Mr Treby submitted that they had not engaged in an improper use of their office because they were concerned that the comments of those opposing the proposed budget would have adverse financial consequences for the City, would adversely affect the City's reputation and would cause distress amongst residents. They also submitted that their remarks were not at odds with the general custom and practice in relation to the nature of debate permitted at council meetings. In addition, they submitted that reg 7(1)(b) should be read down, having regard to the implied freedom of political communication under the Commonwealth Constitution.
The Tribunal found that each applicant had committed minor breaches of the Local Government Act 1995 (WA) by contravening reg 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007 (WA). The Tribunal then considered the appropriate sanction for that breach and for the beach of cl 11.9 of the City of Wanneroo Standing Orders Local Law 2000. The Tribunal determined that the correct and preferable decision was that each applicant should be required to make a public apology, and that Mr Kelly should be subject to an additional sanction in the form of a censure to reflect the fact that his conduct also failed to meet the standards of behaviour expected of a mayor of a local government. The Tribunal affirmed the decisions of the Local Government Standards Panel and dismissed the applications for review.

Introduction

On 25 July 2008, Mr Kelly and Mr Treby attended a Special Meeting of the Council of the City of Wanneroo (City) in their capacity as the Mayor and Deputy Mayor, respectively, and as members of the Council of the City. The purpose of that meeting was to hold a vote of the Council on the adoption of the proposed 2008/2009 Annual Budget of the City (proposed Budget). The Special Meeting was open to members of the public.
At the Special Meeting, a motion was put that the proposed Budget be approved. Councillors in favour of the adoption of the proposed Budget, and those who opposed the Budget, were given the opportunity to address the meeting. It appears that the atmosphere quickly became highly charged. Councillors Blencowe, Grierson and Miles addressed the meeting to oppose the adoption of the proposed Budget. Councillors Goodenough, Smithson, Roberts, Monks, Cvitan and Newton spoke in favour of the adoption of the proposed Budget, as did each applicant. The Special Meeting followed a number of meetings over the preceding months involving councillors and members of the Council's administrative staff, at which the content of the budget was discussed at some length (the budget workshops). Some of the councillors who supported the adoption of the proposed Budget expressed their dismay that opponents of the proposed Budget had not raised their concerns or criticisms about its content during the budget workshops. They also expressed the view that the concerns or criticisms of those who opposed the proposed Budget were without merit.
In the course of their addresses, both applicants made a number of remarks in response to the comments of the three councillors who had opposed the adoption of the proposed Budget (the opposing comments). The nature of the remarks made by the applicants (the remarks) is discussed below. Following the Special Meeting, at which the proposed Budget was ultimately adopted, one of the councillors complained to the Local Government Standards Panel, and alleged that in making the remarks, the applicants each committed minor breaches of the Local Government Act 1995 (WA) (LG Act), contrary to s 5.105 of the LG Act.
On 1 December 2008, 17 December 2008 and on 4 May 2009 the Panel determined that each applicant had committed two minor breaches of the LG Act, by committing a breach of standing order 11.9 of the City of Wanneroo Standing Orders Local Law 2000 (the Standing Orders) and by committing a breach of reg 7(1)(b) of the rules of conduct set out in the Local Government (Rules of Conduct) Regulations 2007 (WA) (the Regulations).
Regulation 7(1)(b) of the Regulations provides that a person who is a council member must not make improper use of the person's office as a council member to cause detriment to the local government or any other person. The Panel concluded that by making the remarks, Mr Kelly and Mr Treby each made improper use of their office as a council member. In addition, the Panel concluded that the remarks were made to cause detriment to the three councillors who had opposed the adoption of the proposed Budget, by diminishing their respective reputations and/or by creating a tendency for others to think less favourably of them.
The Panel imposed sanctions on the applicants, pursuant to s 5.110(6) of the LG Act. The Panel ordered that Mr Kelly be censured by the publication of a Notice of Public Censure in the West Australian newspaper and the Wanneroo Times Community newspaper. The publication of that Notice was to be effected by the Chief Executive Officer of the City, and the terms of the Notice were prescribed by the Panel in its order. In addition, the Panel ordered that Mr Kelly provide a public apology to Crs Blencowe and Grierson and to former Councillor Miles, either at the next meeting of the Council or by publishing an apology in the West Australian newspaper and the Wanneroo Times Community newspaper. The terms of the apology were prescribed by the Panel.
The Panel ordered that Mr Treby provide a public apology to Crs Blencowe and Grierson and to former Councillor Miles, either at the next meeting of the Council or by publishing an apology in The West Australian newspaper and the Wanneroo Times Community newspaper. The terms of the apology were prescribed by the Panel.
The applicants applied to the Tribunal for a review both of the Panel's decision that they committed minor breaches of the LG Act, and of the sanctions imposed on them. The review of the Panel's decision in relation to each applicant is within the Tribunal's review jurisdiction (see s 5.125 of the LG Act). On 19 and 26 June 2009, the Tribunal stayed the Panel's decisions until further order.
The Tribunal determined that it would deal with the question of the alleged breach of standing order 11.9 of the Standing Orders as a preliminary issue. On 9 November 2009, Senior Member Parry concluded that each applicant committed a minor breach by contravening cl 11.9 of the Standing Orders: Treby and Local Government Standards Panel [2009] WASAT 224. On 11 December 2009 Senior Member Parry ordered that the review of the sanction which should be imposed in respect of the breach of standing order 11.9 should be determined following the determination of the review of the Panel's decision with respect to the breach of reg 7(1)(b) of the Regulations.
These reasons for decision therefore deal with the review of the Panel's finding that the applicants breached reg 7(1)(b) and of the Panel's decision in relation to the sanctions which should be imposed on the applicants.
It is appropriate to mention at this point that the Panel did not play an active role in the review proceedings. That was appropriate, having regard to the possibility that exists in a review proceeding that the Tribunal may invite the decisionmaker to reconsider the decision (s 31(1) of the State Administrative Tribunal Act2004 (WA) (SAT Act)) and to the fact that the powers of the Tribunal on a review include the power to set aside the decision that is being reviewed and to send the matter back to the decision-maker for reconsideration (s 29(3)(c)(ii) of the SAT Act). The Panel's role was confined to producing a document setting out the issues, facts and contentions it considered arose in the review proceedings, and placing relevant documents before the Tribunal. In view of the Panel's limited participation in the hearing, the Tribunal was assisted by the intervention of the Attorney General of Western Australia (intervenor) who acted as a contradictor in the review proceedings.

The issues arising on the review

At the hearing, the Panel produced, and the intervenor relied upon, an audio recording and transcript of the proceedings of the Special Meeting as evidence of the breaches of reg 7(1)(b), together with the documentation considered and produced by the Panel in reaching its decisions.
The applicants did not dispute that they were members of the Council of the City, nor did they dispute that they made the remarks attributed to them in the transcript (although they did seek to draw attention to some interjections and remarks made by councillors which were not transcribed). Accordingly, the issues which required resolution at the hearing concerned the proper construction of reg 7(1)(b) of the Regulations, and whether the remarks made by each applicant constituted a breach of that regulation, having regard to its proper construction.
These reasons for decision therefore deal with the following issues:
1.The nature of the remarks made by the applicants at the Special Meeting;
2.The meaning of 'improper use' in reg 7(1)(b) of the Regulations;
3.In making the remarks, did each of the applicants make improper use of their office as a council member?
4.The meaning of 'detriment' in reg 7(1)(b) of the Regulations;
5.Were the remarks made by the applicants to cause detriment to any other person?
6.What sanction(s) should be imposed on each applicant for the breach of reg 7(1)(b) of the Regulations and the contravention of cl 11.9 of the Standing Orders?
7.Conclusion and Orders.
For the reasons outlined below, I have concluded that in making the remarks each applicant committed a breach of reg 7(1)(b) of the Regulations, and that the appropriate sanctions for both of the minor breaches committed by each applicant are those determined by the Panel.

The nature of the remarks made by the applicants at the Special Meeting

I do not propose to quote at length from the transcript of the Special Meeting in order to set out the remarks made by each applicant at the meeting. It will suffice to set out the remarks which were made in summary terms. I have, nevertheless, taken into account the context in which the remarks were made, and I have discussed that context in more detail at appropriate junctures below.
The remarks made by Mr Kelly were, in summary, as follows:
•the comments made in opposition to the proposed Budget were 'on the mischievous side';
•the comments made in opposition to the proposed Budget were 'put by people who simply don't understand basic mathematics, you know, very simple grade 2 stuff';
•the comments made in opposition to the proposed Budget were 'politically motivated';
•the comments made in opposition to the proposed Budget were made by people who had attended the earlier meetings to discuss the content of the proposed Budget and that 'at the end of every segment on the budget I went around and asked individual Councillors for their comments. Every individual Councillor and I'm watching these people nod their heads and you know, you've all seen it, 'I've got nothing to say Mr, Mr Mayor' but all of a sudden on budget night 'I've been saying that all along'';
•'if these people run the budget, there is only two things that would happen, either the City would be bankrupt or we would not provide a reasonable level of service to the, to the most, you know to, to, to the community. I am terrified to think the financial devastation that these individuals would, would reap upon the community if they were in a position to actually impose their will';
•'you might conclude that this is all a stunt';
•'there was plenty of opportunity for these, for these people to actually remove it [ie items with which they disagreed] so I'm not sure which one of the options is the more terrifying, that they can't add up, that they add you know, that they can't put 5 and 2 and work out that that's 7? Or the fact that they would sit down in meetings … and nod and every time you look at them, they're nodding, and every time I go to them I say do you have any comment and they're fine';
•'it is very easy to … stand behind closed doors and let everybody else make the difficult decisions about the things which will help the city to survive and then come out when the media is here, when there's a few cheap headlines to be gained, and say 'oh no, I'm not supporting that' … because then you can run off to your next, next election and you can say 'I didn't support the rates increase'';
•'I'm talking to the Elected Members who are here, who sat there every, every budget meeting over periods of months and saw what happened. You all know what happened, you all know the roles that these individuals played…';
•'I noticed that a couple of you were away during the budget and I accept that, but the reality is, is it Council's responsibility to chase after you, after you or should you do your reading and catch up? Are the ratepayers reasonably expected that you're competent enough to pick up your budget papers and read it…';
•'in the budget, I think you're entitled to get Administration to prepare your recommendation, prepare your amendment so you don't completely ruin the budget. What I've seen tonight is absolutely disgraceful and the public deserves better.'
The remarks made by Mr Treby were, in summary, as follows:
•'it was the equivalent of the monkey, or the three monkeys, crossing eyes, ears and mouth heard nothing, saw nothing and tonight is the time that everyone decides to rewrite history';
•'to suggest that we operate in a vacuum and for the, for the sake and I'll say for the sake of nothing other than grandstanding and 'I don't like it' to go through this entire process';
•'to go through this process and to then suggest to be at the meetings, to sit down, to say nothing, to not raise the issues before now and then say that I don't like the outcome does a great disservice to every other Councillor that put in the hard work';
•'[t]hose Councillors who didn't, who sat back, who did not say anything, who did not raise it before this evening, then to raise it for nothing other than grandstanding is I'd have to say Mr Mayor from my perspective, offensive'.
The remarks were insulting and derogatory to Crs Blencowe, Grierson and Miles, in that the remarks called into question their intelligence and integrity and suggested that they behaved in a politically motivated way.
The intervenor submitted that by making any one, or all, of the remarks each applicant breached reg 7(1)(b).

Meaning of 'improper use' in reg 7(1)(b) of the Regulations

(a) Ordinary and natural meaning

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, and the regulation has not been the subject of any judicial determination in Western Australia.

According to the Shorter Oxford English Dictionary, the meaning of 'improper' includes 'unsuitable' and 'inappropriate'. It is clear that the meaning of the word 'improper' cannot be considered in isolation, but rather will take its flavour from the surrounding context, which includes an assessment of what is involved in role of a councillor, and, in Mr Kelly's case, what is also involved in the role of a mayor, according to the LG Act and the Regulations, and the instruments made thereunder. The role of a councillor includes representing the interests of electors, ratepayers and residents of the district, providing leadership and guidance to the community in the district, and participating in the council's decisionmaking processes at council and committee meetings: s 2.10(a), (b) and (d) of the LG Act. The role of a mayor includes presiding at meetings in accordance with the LG Act, providing leadership and guidance to the community in the district, and speaking on behalf of the local government: s 2.8(1)(a), (b) and (d) and s 2.8(2) of the LG Act. I have considered aspects of the role of councillors and of the mayor in further detail below.
The meaning of the word 'improper' in the context of provisions similar to reg 7(1)(b) was considered in Chew v The Queen (1992) 173 CLR 626 (Chew), R v Byrnes (1995) 183 CLR 501 (Byrnes) and Doyle v Australian Securities and Investments Commission (2005) 227 CLR 18 (Doyle). In Chew and Byrnes the Court considered s 229(4) of the Companies (South Australia) Code while in Doyle the Court construed s 232(6) of the Corporations Law (Cth). Each provision prohibited an officer or employee of a corporation from making improper use of his or her position as such an officer or employee, to gain, directly or indirectly, an advantage for himself or for any other person or to cause detriment to the corporation. Although s 229(4) created a criminal offence, and s 232(6) is a civil penalty provision, the observations of the Court are highly relevant to the construction and application of reg 7(1)(b), given the similarity between its terms and s 229(4) and s 232(6). In view of these authorities, the following conclusions can be drawn in relation to the meaning and application of the term 'improper use of the person's office' within the context of reg 7(1)(b) of the Regulations.
First, impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the [councillor] by reasonable persons with knowledge of the duties, powers and authority of his position as a councillor and the circumstances of the case: Chew at 634 (Mason CJ, Brennan, Gaudron and McHugh JJ) and at 647 (Toohey J); Byrnes at 514 515 (Brennan, Deane, Toohey and Gaudron JJ); Doyle at [35] (the Court).
Secondly, impropriety does not depend on a councillor's consciousness of impropriety. It is to be judged objectively and does not involve an element of intent: Chew at 640 641 (Dawson J); Byrnes at 514 515 (Brennan, Deane, Toohey and Gaudron JJ) and at 521 (McHugh J).
Thirdly, 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: cf Byrnes at 521 (McHugh J). Alternatively, impropriety will arise from the doing of an act which a councillor knows or ought to know that he has no authority to do: cf Byrnes at 514 515 (Brennan, Deane, Toohey and Gaudron JJ); Doyle at [37] (the Court).
Fourthly, 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 purpose or intention in exercising the power will be important factors in determining whether the power has been abused: Chew at 640 641 (Dawson J); Byrnes at 514 515 (Brennan, Deane, Toohey and Gaudron JJ) and at 521 (McHugh J).
Fifthly, 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 the Council: Chew at 634 (Mason CJ, Brennan, Gaudron and McHugh JJ); Byrnes at 521 522 (McHugh J).
The applicants submitted that reg 7(1)(b) should be understood, on its proper construction, as inapplicable to the conduct of councillors during Council meetings and debates. There were two bases for that submission: a construction of reg 7(1)(b) within its statutory context, and a construction that involves 'reading down' reg 7(1)(b) by reference to the implied freedom of political communication under the Commonwealth Constitution.

(b) Contextual considerations

The applicants submitted that reg 7(1)(b) is not intended to apply to the conduct of councillors during council debates. They submitted the Standing Orders and the codes of conduct which local governments are required to adopt pursuant to s 5.103(1) of the LG Act were intended to deal with the conduct of councillors during debates.
The applicants submitted that any complaints by other councillors about the remarks should have been dealt with immediately on the floor of the Council by a councillor calling a point of order pursuant to the Standing Orders. Clause 11 of the Standing Orders relates to rules of debate at meetings of the Council. The applicants submitted that if a complaint had been dealt with under the Standing Orders it could then have been resolved immediately, by either an apology or an admonition if appropriate.
The applicants also pointed to cl 2.3(d) of the City of Wanneroo Code of Conduct for Council Members 2008 (Code of Conduct) and submitted that it was intended to apply to statements by councillors in the course of Council debates. Clause 2.3(d) provides that a member of Council should '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 the member's role, which may cause any reasonable person unwarranted offence or embarrassment'. The applicants submitted that they considered that cl 2.3(d) of the Code of Conduct set the standard for their conduct at the Special Meeting, and that their remarks did not fall below that standard.
Although I have some sympathy with the submission that complaints about the conduct of councillors during council meetings are best resolved immediately, and that the Standing Orders may permit this to occur (cf cl 11.10 of the Standing Orders) I am unable to accept the submission that reg 7(1)(b) does not apply to the conduct of councillors during Council debates.
The LG Act clearly contemplates that regulations will be made to regulate the procedure to be followed at council meetings: see s 5.25(c) and s 9.59(2)(c) of the LG Act. On its face, reg 7 is capable of application to the conduct of council members during council debates, although it is clearly not confined in its operation to that context, and will apply to the conduct of councillors outside council meetings as well. In addition, the particular mischief to which reg 7(1)(b) is directed namely the potential for a council member, by the misuse of their office, to cause detriment to another person can clearly arise within the context of a council meeting. One of the key aspects of a councillor's office is participation in council debates and decisionmaking (s 2.10(d) of the LG Act). The performance of that role presents the opportunity to speak in the public forum of a council meeting, where what is said may attract publicity, and where a person to whom remarks are directed may not have the opportunity, within the same forum, to respond to what is said. If that aspect of the office of a councillor is not used appropriately, considerable harm could be caused to a person.
In addition, I accept the submissions made by counsel for the intervenor that the context in which reg 7 appears supports the conclusion that reg 7(1)(b) applies to council debates. A number of the regulations in Pt 2 of the Regulations (which contains rules of conduct for council members) expressly pertain to matters relating to, or arising from, council debates: see, for example, reg 6 and reg 10(3) of the Regulations. Other regulations within Pt 2 of the Regulations expressly provide that they do not apply to what is done by a councillor at a council meeting: see, for example, reg 9(2) and reg 10(2). Within that context, there is nothing to suggest that reg 7(1)(b) was not intended to apply to the conduct of councillors at council meetings. Moreover, if reg 7(1)(b) had not been intended to apply within that context, an exception could have been included, in similar terms to reg 9(2) and reg 10(2), to make that clear.
Further, contrary to the applicants' submission, I do not see any basis for concluding that it is implicit within reg 7(1)(b), having regard to the existence of the Code of Conduct, that the regulation does not apply to the conduct of councillors during council meetings. The requirement for a local government to adopt a code of conduct exists quite independently of the power to make regulations under the LG Act, including regulations which regulate the procedure at council meetings. Section 5.103 of the LG Act contemplates that in addition to codes of conduct adopted by local governments, the Regulations may prescribe codes of conduct. Subsection 5.103(3) of the LG Act makes clear that if there is any inconsistency between a code of conduct and the Regulations, the Regulations prevail. What is clear from a consideration of the Standing Orders, the Code of Conduct and the Regulations, is that a variety of means have been employed to ensure that the debate within a council meeting is conducted in a fair, orderly and courteous fashion and that councillors are given the opportunity to speak and to be heard, with the objective of facilitating the proper consideration and determination of council business.
Finally, I note that although action can be taken, during a council meeting, against a councillor who breaches cl 11 of the Standing Orders (cf cl 11.10 of the Standing Orders) that is not the only action which can be taken in respect of such conduct. Clause 11.13 of the Standing Orders provides that a failure to comply with the rules of debate in cl 11 constitutes a breach of the Standing Orders as a local law. A contravention of a local law as to conduct is a minor breach of the LG Act: reg 4(2) of the Regulations and see Treby and Local Government Standards Panel [2009] WASAT 224 at [14] [22] (Senior Member Parry).

(c) Whether reg 7(1)(b) should be read down, having regard to the implied freedom of political communication under the Commonwealth Constitution

In their submissions, the applicants contended that reg 7(1)(b) should be read down, in so far as it is capable of application to debate in a council chamber. In making that submission they relied on the decisions of the High Court in Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 (Theophanous) and Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 (Stephens) in which the High Court affirmed its conclusion (in previous cases) that the Commonwealth Constitution contains an implied freedom to discuss and publish material concerning political matters. The applicants expressly confirmed that they did not rely on those authorities to advance a submission that reg 7(1)(b) was invalid. As the applicants did not challenge the existence or scope of the implied freedom and as the applicants' case was confined to the construction of reg 7(1)(b) without challenging its validity, I accepted the submission of counsel for the intervenor that this was not a case in which it was necessary to ensure compliance with s 78B of the Judiciary Act1903 (Cth).
In order to assess the relevance (if any) of the implied freedom of political communication to the present case, it is necessary to identify more specifically the principle itself. The principles referred to in Theophanous and in Stephens were discussed in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 (Lange). In that case, the Court confirmed that the basis for the implied freedom of political communication lies in the system of representative and responsible government established under s 7 and s 24, together with related provisions, including 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 and s 128, of the Constitution (the system of Government established by the Constitution). Those sections require the members of the Senate and the House of Representatives to be directly chosen at periodic elections by the people of the States and of the Commonwealth respectively, provide for the fundamental features of representative government, establish the relationship between the Executive Government and the Parliament and provide for a system of responsible ministerial government, and provide for the means by which the Constitution may be altered, following the expression of the will of the electors: Lange at 557 559.
In Lange the Court noted (at 559) that '[f]reedom of communication on matters of government and politics is an indispensable incident of that system of representative government which the Constitution creates by directing that the members of the House of Representatives and the Senate shall be 'directly chosen by the people' of the Commonwealth and the States, respectively'. The Court went on to observe (at 560) that '[c]ommunications concerning political or government matters between the electors and the elected representatives, between the electors and the candidates for election and between the electors themselves were central to the system of representative government, as it was understood at federation'. The Court therefore held (at 560) that the system of Government established under the Constitution implied the existence of a freedom of communication about political matters, because that freedom was necessary in order for electors to be able to exercise a free and informed choice as electors.
Against that background, the following points can be made in relation to the parameters of the implied freedom of political communication.
First, the implied freedom does not exist only in an election period. Were that so, '[m]ost of the matters necessary to enable 'the people' to make an informed choice will occur during the period between the holding of one, and the calling of the next, election. If the freedom to receive and disseminate information were confined to election periods, the electors would be deprived of the greater part of the information necessary to make an effective choice at the election': Lange at 561. Furthermore, this is also apparent from the presence of s 128, and of s 6, s 49, s 62, s 64 and s 83 of the Constitution which amongst other things set out the process for amendment of the Constitution and deal with the executive government. Electors need to be able to obtain information about matters that might be relevant to the vote they cast in a referendum to amend the Constitution or concerning the conduct of the executive branch of government throughout the life of a federal Parliament: Lange at 561.
Secondly, the implied freedom of communication which the Constitution protects is not absolute: see, for example, Nationwide News Ltd v Wills (1992) 177 CLR 1 at 51, 76 77, 94 95. The implied freedom is limited to what is necessary for the effective operation of the system of government established by the Constitution: Lange at 561.
Thirdly, s 7 and s 24 and the related provisions of the Constitution do not confer personal rights on individuals, but rather 'they preclude the curtailment of the protected freedom by the exercise of legislative or executive power': Lange at 560.
Fourthly, in order to determine whether a law of a State or Federal Parliament or a Territory legislature is alleged to infringe the requirement of freedom of communication imposed by the provisions of the Constitution referred to above, two questions must be answered. First, does the law effectively burden freedom of communication about government or political matters, in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the system of government established by the Constitution? If the first question is answered 'yes' and the second is answered 'no' the law will be invalid: Lange at 561 2, 567 568; Coleman v Power (2004) 220 CLR 1 (Coleman) at [96], [196], and [211].
Fifthly, each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters affecting the people of Australia. The interest that each member of the Australian community has in such a discussion extends the categories of qualified privilege, and those categories are now recognised as protecting a communication made to the public on a government or political matter. Discussion of government or politics at State or Territory level and even at local government level is amenable to protection by the extended category of qualified privilege, whether or not it bears on matters at the federal level: Lange at 571.
Sixthly, in some cases it has been accepted that communications about State matters may fall within the implied freedom: Roberts v Bass (2002) 212 CLR 1; Coleman. However, it is not yet settled as to precisely when a law that impinges on freedom of communication about State or local matters will infringe the implied constitutional freedom of political communication: see, for example, the discussion in L. Zines, The High Court and the Constitution (5^thed, 2008) at 545 548; see also the references cited in McLure v The Mayor and Councillors of the City of Stirling [No. 2] [2008] WASC 286 at [81] – [82] (Beech J) (but cf Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [197] [198] (Kirby J)).
Dealing with the last point, in the present context it seems to me that there is room for argument as to whether communications of the kind involved in the applicants' remarks would be subject to the implied freedom of political communication. It is difficult to immediately see any connection between those remarks, the subjects of them, or the context in which they were made, on the one hand, and the system of government established under the Constitution on the other hand. However that matter was not the subject of argument at the hearing. For present purposes, it suffices to say that even if the implied freedom of political communication applies to communications of the present kind, reg 7(1)(b) does not need to be construed in a manner different from the ordinary and natural construction outlined above, in order to operate consistently with the implied freedom.
The applicants submitted that if reg 7(1)(b) was construed in the manner I have outlined above, it would not be reasonably appropriate and adapted to a legitimate end. They submitted that a construction of reg 7(1)(b) which would be appropriate and adapted to a legitimate end was that if there was a good faith belief and no malicious intent, then elected members of a council should be permitted to publicly discuss any matter that the public was entitled to receive. They submitted that the standard in Theophanous and Lange was the appropriate standard by reference to which their conduct in the Special Meeting should be assessed in determining if that conduct amounted to an improper use of their offices.
The applicants also submitted that the conclusion that their remarks constituted an improper use of their office as a council member would have the consequence of prohibiting any elected member of a local government in Western Australia from effectively communicating with the community about political and government matters that are directly relevant to the system of representative and responsible government.

I am unable to accept the applicants' submissions. As I explained above, reg 7 is directed, amongst other things, to ensuring that the debate within a council meeting is conducted in a fair, orderly and courteous fashion and that councillors are given the opportunity to speak and to be heard, with the objective of facilitating the proper consideration and determination of council business. However, reg 7 does not prohibit a council member from discussing council business, to question, and in some cases, no doubt, to criticise, the actions of others which impact on matters relevant to the affairs of a local government and the community it serves. In dealing with the finding made by the Panel of a breach of cl 11.9 of the Standing Orders in Treby, Senior Member Parry observed (at [19]):
A councillor is able to meaningfully participate in the good government of the persons in the district and to duly, faithfully, honestly and with integrity fulfil the duties of the office for the people in the district according to his or her best judgment and ability, without reflecting adversely upon the character or actions of, or imputing any motive to, another member or an officer of the local government. Indeed, good government requires courtesy amongst those elected to govern.
The sentiment behind that observation is equally apt to reg 7(1)(b).
In addition, reg 7(1)(b) only limits the freedom of a councillor to engage in such communications in two ways: by doing so in a way which constitutes an improper use of a councillor's office, and by doing so in a way which causes detriment to another person. Provided that the communication does not constitute an improper use of a councillor's office, the fact that the communication causes detriment to another person will not be sufficient to contravene reg 7(1)(b). Similarly, even if the communication 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 the communication is also made to cause detriment to another person. In my view, therefore, reg 7(1)(b) is reasonably appropriate and adapted to the legitimate end of facilitating the proper consideration and determination of council business, in a manner which is compatible with the system of government established under the Constitution:
Accordingly, there is no warrant to give reg 7(1)(b) a more limited operation than its ordinary and natural meaning suggests.
I turn, now, to consider whether the remarks made by the applicants constituted an improper use of their office as councillors, and, in Mr Kelly's case, as the mayor.

In making the remarks, did each of the applicants make improper use of their office as a council member?

The applicants submitted that in making the remarks, their conduct did not fall below the standards of conduct that would be expected of councillors, by reasonable persons with knowledge of the duties, powers and authority of the position of a councillor, and all of the circumstances of the case. The applicants pointed to three aspects of the circumstances of the case which they submitted should be taken into account in determining whether they fell below the standard which a reasonable person would expect of them:
(a)The applicants' concern that the opposing comments would have adverse financial consequences for the City
(b)The applicants' concern that the opposing comments would adversely affect the City's reputation and would cause distress amongst residents of the City; and
(c)custom and practice in relation to the nature of debate permitted at council meetings.

(a) The applicants' concern that the opposing comments would have adverse financial consequences for the City

The applicants each submitted that their reason for making the remarks was that they considered that the opposing comments would have adverse consequences on the City's finances and reputation, and were likely to cause distress in the community.
In their addresses in opposition to the proposed Budget, Crs Blencowe, Grierson and Miles referred to a number of issues of concern to them, including the increase in council rates, and the impact that this would have on residents in the City.
In their witness statements, both Mr Kelly and Mr Treby stated that to the best of their recollection, at no time during the budget workshops had Cs Blencowe, Miles and Grierson mentioned those issues. Mr Kelly recalled that the view expressed by Cr Miles to one aspect of the proposed Budget was quite contrary to the view he expressed about that issue at the Special Meeting. Ms Tracey Roberts, now the Deputy Mayor of the City, and Cr Glynis Monks, both of whom were present at the Special Meeting, provided witness statements which indicated that their recollection of events was consistent with the events described by Mr Treby. On the other hand, according to the transcript of the Special Meeting, Councillor Blencowe maintained that he had raised his concerns during the budget workshops.
The evidence of Mr Treby and Mr Kelly was to the effect that if a councillor disagreed with the content of the proposed Budget, the appropriate course would have been to discuss that matter with the City's administrative staff with a view to developing a proposed amendment, to have that amendment costed, and to propose that amendment at the Council meeting. Comments to similar effect were made by Cr Goodenough in the course of the Special Meeting.
Whether Crs Blencowe, Miles and Grierson did raise their concerns during the budget workshops is not presently relevant. What is relevant (as one of the circumstances which a reasonable person would take into account in assessing whether the applicants' remarks fell below the standards which can be expected of councillors) is that clearly the applicants believed that Crs Blencowe, Miles and Grierson had not previously raised their concerns about the content of the proposed Budget. The applicants submitted that the history of the budget workshops had led them to believe that all councillors would support the adoption of the proposed Budget, and they were therefore caught by surprise to hear that some councillors opposed the adoption of the proposed Budget.
The evidence of each applicant was that they considered that by opposing the adoption of the proposed Budget in its entirety, as opposed to seeking an amendment to it, Crs Blencowe, Grierson and Miles risked undermining the City's reputation and creating adverse financial consequences for the City. The applicants said that the reason why they were concerned about damage to the City's finances was the prospect that those concerns might lead councillors to reject the proposed Budget. According to the witness statement of Mr John Paton, who was the Acting Chief Executive Officer of the City at the time of the Special Meeting, a 'delay in adoption of the budget could impact on issuing of the Council Rates, which in turn would delay receipt of those Rates. This would have an adverse impact on the interest earnings achievable for the financial year.'
I am unable to accept that a reasonable person with knowledge of the circumstances would conclude that the opposing comments made by Crs Blencowe, Grierson and Miles gave rise to a real risk that the proposed Budget would not be adopted.
The passage of the proposed Budget required the support of an absolute majority of the number of offices of members of the Council (whether vacant or not): s 1.4 of the LG Act. According to the Panel's reasons for decision in respect of the complaint against Mr Kelly (Respondent's Book of Documents p 134) the number of offices of council members at the time was sixteen, although only fifteen members of the Council were present at the Special Meeting. Accordingly an absolute majority of the Council required nine votes.
By the time Mr Treby addressed the Special Meeting, five councillors had spoken in favour of the proposed Budget. Taking into account his own vote in favour, by the time of Mr Treby's address he could reasonably expect that six councillors would be likely to vote in favour of the proposed Budget. In addition, at that stage, Mr Kelly had not yet addressed the meeting. Mr Treby claimed that he was not aware what Mr Kelly's vote would be, although he admitted that nothing led him to believe that Mr Kelly would not support the proposed Budget. Given that, as the Deputy Mayor, Mr Treby had worked with Mr Kelly, and had discussed the proposed Budget with him, Mr Treby's claim that he was uncertain whether the Mayor would vote in favour of the proposed Budget lacked any credibility. In addition, the Special Meeting was being conducted against the background of the budget workshops. It appears that Mr Treby and Mr Kelly had formed the impression from the discussion at the budget workshops that Councillors would support the proposed Budget (otherwise it would not, presumably, have been put to a vote at the Special Meeting). Accordingly by the time Mr Treby addressed the Special Meeting (and in anticipation of Mr Kelly's 'yes' vote) it must have been apparent that with only two additional 'yes' votes required it was likely that an absolute majority would be achieved. Nevertheless, Mr Treby maintained that by the time he addressed the Special Meeting, there was insufficient information for him to form the view that it was likely that the proposed Budget would be adopted.
By the time Mr Kelly addressed the Special Meeting, seven members of the Council had already spoken in support of the proposed Budget. It must similarly have been apparent that an absolute majority in favour of the proposed Budget would very likely be achieved. However, Mr Kelly's evidence was that he had not been tallying up the likely votes during the course of the debate. That aspect of his evidence was unconvincing. When Mr Kelly addressed the meeting seven other councillors had spoken in favour of the proposed Budget, while only three had spoken against it. Taking into account his own vote, that would make eight votes in favour and three against, with only four members of Council who had not indicated a view at that point, and only one more 'yes' vote required. It must have been apparent that an absolute majority of the members of Council was likely to vote in favour of the proposed Budget.
Mr Kelly also said that he could not be sure that those councillors who had spoken in favour of the proposed Budget at the Special Meeting would necessarily vote in the same way after hearing the opposing comments. That evidence was also unconvincing. Three councillors addressed the Special Meeting prior to Crs Blencowe, Grierson and Miles. Councillors Goodenough and Smithson had moved and seconded the motion to adopt the proposed Budget. Councillor Roberts was clearly in favour of the proposed budget and subsequently said that she was 'incensed' by the opposing comments. None of those councillors could reasonably have been expected to change their vote in view of the opposing comments. The other councillors who spoke in favour of the proposed budget did so after hearing the opposing comments.
In my view, a reasonable person, with knowledge of the circumstances prior to the applicants making the remarks, would have taken into account the likely manner in which councillors would vote, based on their addresses to the Special Meeting, and the outcome of the budget workshops, and would have concluded that at the time the applicants addressed the Special Meeting, it was very likely that the proposed Budget would be adopted by the Council. In my view a reasonable person would have judged whether the remarks were improper by reference to this situation.

(b) The applicants' concern that the opposing comments would adversely affect the City's reputation and would cause distress amongst residents of the City

The applicants also submitted that even though the passage of the proposed Budget might have been secured, nevertheless the opposing comments could have affected the City's reputation because the broad publication of inaccurate comments was likely to make people think less of the City. The applicants submitted that the City's reputation included the reputation of the Council following the vote, and the reputation of members of the executive of the City's administration. The applicants also stated that they were concerned that the opposing comments were inaccurate and could have caused distress amongst residents of the City. The applicants pointed in particular to what they saw as a link which had been made between the number of home foreclosures during the previous year, the financial stress being experienced by many families in the community and the increase in the Council rates included in the proposed Budget. The applicants understood the opposing comments to suggest that the adoption of the proposed Budget was not in the public interest and might result in some people losing their homes.
In my view, the circumstances which would be taken into account by a reasonable person in assessing the standards which could be expected of the applicants also included the following four matters.
First, in their witness statements, and in their evidence under cross examination, it became apparent that the remarks made by the applicants were prompted by their assumptions about what was meant by the opposing comments, rather than by what those comments actually were. That is, those assumptions were not based on what was actually said by Crs Blencowe, Grierson and Miles.
Secondly, the applicants' concern about the consequences of the opposing comments ignored the potential countering effect of the addresses made by the councillors who spoke in support of the proposed Budget, and of the fact that Mr Kelly had indicated he would ask Mr Paton to address the Special Meeting to explain how some of its key features had been determined.
Thirdly, other councillors addressed the meeting in defence of the proposed Budget, and the process leading up to it, and to refute the opposing comments, and they did not resort to using insulting and derogatory remarks of the kind made by the applicants.
Finally, there was considerable force in the submission made by counsel for the intervenor that the reputation of the City was equally liable to be damaged by virtue of the applicants' remarks which called into question the intelligence and integrity of other councillors.
In my view, a reasonable person with knowledge of councillors' duties, powers and authority, and of the circumstances of this case, would not give weight to the applicants' concern that the opposing comments would have an adverse effect on the City's reputation or would cause distress to residents of the City.

(c) Custom and practice in relation to the nature of debate permitted in council meetings

The applicants contended that their remarks were made honestly and in good faith about a matter of public interest, were consistent with the customs and practices at the City and by any reasonable community standard would be regarded as robust debate and not improper. The essence of this submission appeared to be that the remarks did not fall below the standard which would be expected of councillors by a reasonable person who was fully informed of the facts. There were three bases for this submission.
First, in his witness statement, Mr Treby stated that 'it has been the custom and practice of council that robust debate of this nature was allowed in the absence of a point of order' and that as no point of order was taken during his remarks, this indicated that his remarks 'were both fair and reasonable in the circumstances'.
Secondly, the applicants drew attention to various parts of the audio recording where they submitted that interjections were made, or comments were made by councillors, which were not recorded in the transcript. For instance, Mr Kelly submitted that his reference to some of the addresses in opposition to the proposed Budget were 'mischievous' simply repeated a comment which had been made by another councillor, but which had not been recorded on the transcript. Similarly, Mr Kelly stated that at one point one of the councillors had called him a liar but that this was not reproduced on the transcript. Neither of these comments was clearly audible when the audio recording was replayed at the hearing. I accept Mr Kelly's evidence that those things were said. However, as they were not said sufficiently loudly to be heard on the audio recording, it is not possible to conclude that those statements were intended to constitute contributions to the debate.
Thirdly, the applicants relied on a witness statement from Mr Terrence Loftus, the owner, editor, and a journalist, with the Sun City Newspaper, and a former councillor for the City, who was present at the Special Meeting. Mr Loftus stated that Mr Kelly, Mr Treby and many of the other councillors present at the Special Meeting 'behaved consistently with the usual customs and practices adopted at the City … over the past decade' and that the debate during the Special Meeting 'was no more than robust debate' and 'would be regarded as quite tame by any reasonable community standard'.
I do not accept that the applicants' remarks were consistent with custom and practice for debate at meetings of the Council. The rules of debate regarding meetings of the Council are dealt with, amongst other things, in the Standing Orders. Clause 11.9 of the Standing Orders provides that:
A member shall not reflect adversely upon the character or actions of another member or an officer of the City nor impute any motive to a member or an officer unless the Council resolves, without debate, that the motion then before the Council cannot otherwise be adequately considered.
The fact that no member of the Council, on this occasion, called a point of order in reliance on cl 11.9 of the Standing Orders does not mean that that clause no longer reflects the standard of debate to be expected of councillors at meetings. The evidence of Mr Loftus that the debate was no more than robust debate and was 'tame by any reasonable community standard' was not to the point. The conduct of council debates has to be measured against the standards set by the Parliament through the LG Act, through the Regulations, and by the various instruments, including Standing Orders and Codes of Conduct, which are adopted by local governments themselves to regulate their own proceedings.

(d) Conclusion

Counsel for the intervenor submitted that 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 governments. Counsel for the intervenor pointed to a variety of such instruments, including s 2.10 of the LG Act, reg 3 of the Regulations, the Standing Orders, including standing order 11.9, and Pt 2 of the Code of Conduct which relates to the conduct of councillors during debates. In relation to Mr Kelly, counsel for the intervenor submitted that as the Mayor, Mr Kelly was subject to additional expectations in terms of standards of behaviour, reflected in s 2.8(1) of the LG Act and in the expectation that a mayor, as the chair of council meetings, will remain impartial: Gifford, The Western Australian Council Meetings Handbook (3^rd ed, 1976) at 23; see also Arcus v Castle and Wellington Hospital Board [1954] NZLR 122 at 129.
I digress to note that Mr Kelly disputed the legitimacy of the view that a mayor should remain impartial in council meetings. He submitted that expecting impartiality from a mayor was not appropriate when, like other councillors, a mayor is an elected representative who is answerable to the electors in his district. I do not agree. Under s 2.8(1) of the LG Act, a mayor's role includes presiding at meetings of a council in accordance with the LG Act. In order to carry out that role, in a manner which facilitates the proper consideration and determination of council business, it is important that a mayor, as chairperson of a council meeting, remain impartial in his or her conduct of that meeting. That does not mean that a mayor is not permitted to express his or her own views about items of council business. It does, however, mean that a mayor should treat all councillors fairly, not show particular favours to council members, and should not resort to personal attacks on fellow councillors.

Counsel for the intervenor submitted that a failure to comply with any of the provisions he had identified 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 his position as a councillor and the circumstances of the case, and would therefore suggest an improper use of that office. I accept those submissions.
In the present case, Senior Member Parry concluded that the remarks made by the applicants constituted a breach of Standing Order 11.9 of the Standing Orders. That supports the conclusion that in making the remarks the applicants engaged in an improper use of their office as councillors.
In addition, the nature of the remarks made by the applicants constituted a clear failure to treat Crs Blencowe, Grierson and Miles with respect and fairness, and thereby constituted a failure to meet the standard of behaviour for councillors reflected in reg 3(1)(g) of the Regulations. Regulation 3 sets out general principles to guide the behaviour of council members. Although those general principles are for the guidance of council members, it is not a rule of conduct that those principles be observed: reg 3(2) of the Regulations. However, in my view, that does not detract from the fact that those principles provide an indication of the standards which can reasonably be expected of councillors. The contravention of reg 3(2) therefore also supports the conclusion that in making the remarks the applicants engaged in an improper use of their office as councillors.
In so far as Mr Kelly is concerned, in making the remarks he failed to properly carry out the role of a mayor in impartially presiding over a meeting of the Council (cf s 2.8 of the LG Act). The remarks he made, and the derogatory nature of those remarks with respect to particular councillors, are inconsistent with impartiality in the performance of the role of the person presiding at a council meeting. That also supports the conclusion that in making the remarks Mr Kelly engaged in an improper use of his office as mayor of the Council.
As I have already noted, a councillor's improper use of his or her office is not sufficient to contravene reg 7(1)(b). I turn, then, to consider whether the remarks were made to cause detriment to Crs Blencowe, Grierson and Miles.

Meaning of 'detriment' in reg 7(1)(b) of the Regulations

I accept the submission of counsel for the intervenor that 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.
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.
A contravention of reg 7(1)(b) does not depend on actual detriment being suffered by a person: cf Chew at 633 (Mason CJ, Brennan, Gaudron and McHugh JJ). However, it must be established that the councillor believed that the intended result of his or her conduct would be that the other person would suffer detriment: cf Chew at 634 (Mason CJ, Brennan, Gaudron and McHugh JJ).
The applicants submitted that reg 7(1)(b) should be applied differently when the subjects of the alleged detriment were elected members of a local government as compared with other members of the community. There were two bases for that submission.
First, the applicants submitted that there should be a higher threshold for causing detriment to an elected office holder than to an ordinary citizen. It was submitted that the reason for that higher threshold is that elected representatives should be able to be challenged on issues relating to their competence and fitness for office. I understood the applicants' submission to be that unlike ordinary citizens, elected representatives were, by virtue of their public office, under a social or moral duty to receive communications about matters of public interest, and to be subject to fair comment about their fitness for office, and their competence.
The applicants sought to derive support for that submission from some authorities concerning the defence of fair comment and qualified privilege in relation to actions for libel and defamation. They referred, amongst others, to Davis v Shepstone (1886) 11 App Cas at 187 and Adam v Ward [1917] AC 309 at 334 (Lord Atkinson). In the former case, Lord Herschell LC observed (at 190) that 'there is no doubt that the public acts of a public man may lawfully be made the subject of fair comment or criticism, not only by the press, but by all members of the public'. I note, however, that his Lordship went on to observe that 'the distinction cannot be too clearly borne in mind between comment or criticism and allegations of fact, such as that disgraceful acts have been committed, or discreditable language used. It is one thing to comment upon or criticise, even with severity, the acknowledged or proved acts of a public man, and quite another to assert that he has been guilty of particular acts of misconduct'.
In addition, the applicants submitted that this higher threshold for detriment in respect of a public figure impacted on whether an inference could be drawn that there was an intention to cause detriment, in that one public figure would be entitled to assume that he or she could apply that higher threshold for detriment in commenting on other public figures and their fitness for office.
I do not accept that the word 'detriment' should be applied differently in relation to a person who is an elected office holder. Nothing in reg 7(1)(b) warrants the conclusion that that regulation should be interpreted and applied differently, depending upon the identity of the subject of comments made during a debate at a council meeting. The potential for detriment to be caused to a person is not lessened by the fact that that person is an elected office holder. Elected office holders are likely to be subjected to public scrutiny, and required to be accountable, in relation to the performance of their office. That is quite properly the case, in order to ensure the accountability to the electorate of the elected body as a whole. However, the desirability of that public scrutiny and accountability does not have a correlation in a right to engage in derogatory personal attacks on elected office holders.
More importantly, the construction of reg 7(1)(b) which is advanced by the applicants would, if accepted, have the potential to undermine one of the objectives of the LG Act, and of reg 7(1)(b) itself, which is to facilitate the proper conduct of council business. If councillors were free to engage in personal attacks on each other, of the same nature as the remarks, the focus of the debate could quickly be diverted from the issues before the Council to trading insults about the personal qualities and fitness for office of individual councillors.
In my view, therefore, the word 'detriment' in reg 7(1)(b) should be given its ordinary and natural meaning.

Were the remarks made by the applicants to cause detriment to any other person?

The applicants' position was that they had no intention of causing detriment to any other person, but that their intention was solely to protect the reputation of the City, or to avoid adverse financial consequences for the City or potential distress for members of the community.
Counsel for the intervenor submitted that in the absence of admissions by either applicant that they intended to cause a detriment to Crs Blencowe, Miles and Grierson, the Tribunal should find that intention only if the only inference open was that it was more likely than not that each applicant intended to cause detriment or that each applicant's conduct was done with reckless indifference that the detriment was a probable or likely consequence of his conduct.
The nature of the remarks was such that they were plainly capable of causing detriment to Crs Blencowe, Grierson and Miles, in the sense of diminishing their reputations or causing others to think less favourably. The remarks were insulting and derogatory, in that they called into question the intelligence and integrity of the Councillors concerned. Although aspects of the remarks were directed to particular individuals, by way of a response to their individual comments, overall the remarks were directed to Crs Blencowe, Grierson and Miles collectively, and would have been understood by observers to pertain to each of those councillors.
In my view, the only reasonable inference which is open on a consideration of all of the evidence is that in making the remarks, the applicants intended to cause detriment to Crs Blencowe, Grierson and Miles. Having regard to the derogatory nature of the remarks, it is difficult to see any other plausible explanation for why such remarks were made. Although the applicants claimed that they made the remarks because they were concerned about the possible consequences of the opposing comments, they did not offer any explanation for why they resorted to insulting and derogatory remarks about Crs Blencowe, Grierson and Miles.
Furthermore, the evidence clearly supported the conclusion that it would have been possible for the applicants to have refuted the opposing comments without resorting to insulting and derogatory remarks about Crs Blencowe, Grierson and Miles. In cross examination, Mr Kelly agreed, with one qualification, that those councillors (apart from Mr Treby) who spoke in favour of the adoption of the proposed Budget did so without alleging that Crs Blencowe, Miles and Grierson were incompetent, or politically motivated. Mr Kelly's evidence was that one councillor had questioned the professionalism and credibility of those who spoke against the adoption of the proposed Budget and that he understood the observations of this councillor to suggest that Crs Blencowe, Miles and Grierson were politically motivated.
Similarly, Mr Treby agreed, with one qualification, that the other councillors who spoke in favour of the proposed Budget, and who addressed the meeting after Cr Blencowe, Grierson and Miles, did not resort to the use of phrases such as 'grandstanding' and 'grave disservice' which he had used. However, Mr Treby's evidence was that one councillor had suggested that those councillors who opposed the proposed Budget should have pursued solutions to the matters about which they objected, and that this statement carried the inference that councillors who opposed the proposed Budget had done a grave disservice to their fellow councillors by not previously raising their concerns. Mr Treby also accepted, in cross examination, that with the benefit of hindsight he could have achieved the same objective without using terms such as 'grandstanding' to refer to Crs Blencowe, Miles and Grierson.
Finally, I note that the language and allegations contained in the applicants' remarks stand in marked contrast to the statements made by other councillors who addressed the Special Meeting in support of the proposed Budget.
In my view the evidence establishes that it is more likely than not that the remarks made by each applicant constituted an improper use of their office as councillors, and in Mr Kelly's case, as the mayor, and that the remarks were made to cause detriment to Crs Blencowe, Grierson and Miles. Accordingly, the evidence establishes a breach by each applicant of reg 7(1)(b) of the Regulations.

What sanction(s) should be imposed on each applicant for the breach of reg 7(1)(b) of the Regulations and the contravention of cl 11.9 of the Standing Orders?

In determining the sanctions which should be imposed on the applicants, the Panel took the view that:
(a)the actions of a council member, at a council meeting when members of the public are present, in reflecting adversely upon the character and actions or other council members, and in imputing motives to other council members, is inappropriate conduct and usually deserving of public censure; and
(b)any improper use by a council member of his/her office of council member for the purpose of causing a detriment to another member is a very serious matter and usually deserving of public censure.
The Panel added that when the improper use was made by the presiding officer at the council meeting, the matter was particularly serious.
The Panel also took into account that neither Mr Kelly nor Mr Treby had previously been found to have committed any minor breach of the LG Act, and on the basis of their submissions, it appeared that neither of them failed to appreciate that his comments relating to Crs Blencowe, Miles and Grierson during the debate were unacceptable.
In relation to Mr Treby, the Panel noted that no councillor present during the debate called a point of order at any time during Mr Treby's address.
In relation to the breaches committed by Mr Kelly, the Panel concluded that two of the sanctions set out in s 5.110(6)(b) should be imposed, due to the seriousness of the breach of reg 7(1)(b). The seriousness of that breach warranted Mr Kelly being admonished by the Panel for his offending conduct, as well as requiring him to make a public apology to Crs Blencowe, Miles and Grierson.
The applicants accepted that by breaching cl 11.9 of the Standing Orders, they breached a local law relating to conduct and thereby committed a minor breach for the purposes of s 5.105(1)(b) of the LG Act. However, the applicants submitted that in the circumstances the Tribunal should make no order as to penalty.
In the alternative, the applicants submitted that in the event that the Tribunal determined that a sanction should be imposed in respect of a breach of reg 7(1)(b) together with cl 11.9 of the Standing Orders, or of cl 11.9 of the Standing Orders alone, the appropriate sanction would be the imposition of a censure, rather than to require an apology. The applicants took that position notwithstanding their submission that a censure constitutes a more severe sanction than an apology. The basis for their submission was that a requirement to provide an apology might be regarded as a vindication of the conduct of Crs Blencowe, Grierson and Miles and might serve to encourage a culture of complaints to the Panel arising from Council debates, which was not in the interests of the City.
I agree with the Panel's view that the conduct of the applicants in making the remarks was serious. It involved taking advantage of their position as councillors who were able to make statements in a public forum, to make insulting and derogatory comments about Crs Blencowe, Grierson and Miles which questioned their honesty and integrity. Conduct of this kind has the potential to disrupt and undermine the proper conduct of council business. That is particularly so when conduct of this kind is engaged in by the person whose role it is to preside at the meetings, namely the Mayor.
At the same time, as Mr Treby himself effectively admitted, the applicants made the remarks they did in the heat of the moment, in what appears to have been a highly charged atmosphere. This was not a calculated misuse of their office to cause detriment to other persons.
I also take into account the fact that there was no suggestion that the applicants had engaged in conduct of this kind before and the applicants have not been subject to action in respect of a minor breach before now.
The applicants accepted 'that with the benefit of hindsight they could have handled the matter better'. However, they did not express remorse for what they did, and their approach in these proceedings was to seek to justify their own conduct.
Having regard to these considerations, in my view a sanction should be imposed to reflect the community's disapproval of a contravention of reg 7(1)(b) and of cl 11.9 of the Standing Orders, to dissuade councillors from other local governments from engaging in similar conduct in the future, and thereby to maintain appropriate standards of behaviour by councillors during council meetings.
The conclusion that a sanction should be imposed for the minor breaches raises for consideration whether separate sanctions should be imposed in respect of each minor breach by the applicants. That issue arises, in particular, because of the similarities between the provisions which the applicants contravened, and because the evidence which established each minor breach was the same.
In the criminal context, the general principle in Western Australia is that if the evidence necessary to establish two offences is identical, an offender should not be punished twice for the same conduct: cf s 11 of the Sentencing Act1995 (WA) and Plenty v Bargain [1999] WASCA 67 at [69] [72] (McKechnie J).; cf Pearce v The Queen (1998) 194 CLR 610 at 623 (McHugh, Hayne and Callinan JJ).
In the present case, although standing order 11.9 and reg 7(1)(b) contain some similar elements, they are not identical, but the evidence which was relied upon to establish each breach namely the transcript of the Special Meeting was the same. Counsel for the intervenor accepted that if this was a criminal case, then s 11 of the Sentencing Act 1995 (WA) would apply. Although the minor breaches are not criminal offences, the same general principle which is applied in the criminal context should be applied in determining the appropriate sanction in this case. In my view, it would therefore be inappropriate to impose a sanction for each minor breach in this case.
Section 5.110(6) of the LG Act contains a range of sanctions. As I have noted above, the applicants submitted that a censure was a more severe sanction than an apology. A censure is a public statement of disapprobation of a councillor's conduct. On the other hand, the personal nature of an apology, and the admission by the individual of wrongdoing which an apology entails, is also a significant sanction. It is not necessary to decide whether one is a more serious sanction than the other. In my view, the correct and preferable decision is that each applicant should be required to make a public apology to Crs Blencowe, Grierson and former Cr Miles, in the terms set out by the Panel in its orders. That sanction is an appropriate reflection of the seriousness of the minor breaches, but also appropriately reflects the fact that Crs Blencowe, Grierson and former Cr Miles were the subjects of the improper conduct in which the applicants engaged.
In addition, the correct and preferable decision is that Mr Kelly should be subject to an additional sanction, to reflect the fact that his conduct also failed to meet the standards of behaviour expected of a mayor of a local government. The appropriate form of that additional sanction is a censure.
The fact that the applicants will be subjected to a sanction in respect of their conduct should not be viewed as a sign of encouragement for councillors to pursue complaints of a minor breach of the LG Act in respect of the conduct of a fellow councillor during a council meeting. As I observed earlier in these reasons, there is a good deal of merit in the view that matters of this kind should be dealt with immediately in the course of a council debate, if that is possible. To do so is likely to ensure that the standard of debate within council meetings is maintained, thereby facilitating the proper consideration and determination of council business. An immediate response, rather than the pursuit of a formal complaint which may take months to resolve, is also more likely to preserve relationships among councillors, which is essential to the efficacious functioning of a council. Finally, dealing with breaches of the appropriate standards in the course of the council meeting itself, where that is possible, ensures that those matters are dealt with in a way, and with the quantum of resources, which is appropriate having regard to the nature and seriousness of the conduct itself.

Conclusion and Orders

I am satisfied that the evidence in this case supports the conclusion that it is more likely than not that each applicant breached reg 7(1)(b) of the Regulations: cf s 5.106 of the LG Act.
I therefore affirm the decision of the Panel in so far as it pertained to the contravention of reg 7(1)(b).
I am satisfied that the correct and preferable decision in relation to the sanction for the breach of reg 7(1)(b) and the breach of cl 11.9 of the Standing Orders is that Mr Kelly should be censured, and should be required to make a public apology, in the terms set out by the Panel, and that Mr Treby should be required to make a public apology, in the terms set out by the Panel.
Having regard to the finding made by Senior Member Parry on the preliminary issue on 9 November 2009, I make the following orders:
1.The decisions of the Panel made on 1 December 2008, 17 December 2008 and 4 May 2009, that each applicant had committed minor breaches of the Local Government Act 1995 (WA) by contravening cl 11.9 of the City of Wanneroo Standing Orders Local Law 2000 and reg 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007 (WA), are affirmed.
2.The decisions of the Panel made on 1 December 2008, 17 December 2008 and 4 May 2009, in relation to the sanctions to be imposed on each applicant for the minor breaches they committed, are affirmed.
3.The applications for review are dismissed.

I certify that this and the preceding [133] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J PRITCHARD, DEPUTY PRESIDENT