Treby and Local Government Standards Panel - [2009] WASAT 224

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: LOCAL GOVERNMENT ACT 1995 (WA)

CITATION: TREBY and LOCAL GOVERNMENT STANDARDS PANEL [2009] WASAT 224

MEMBER: MR D R PARRY (SENIOR MEMBER)

HEARD: 3 NOVEMBER 2009

DELIVERED : 9 NOVEMBER 2009

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
Intervener

Catchwords:

Local government Regulation of local government councillors Preliminary issues Whether a provision of a standing orders local law is a local law as to conduct Whether provision is procedural Whether provision is inoperative by reason of inconsistency with section requiring every local government to prepare and adopt a code of conduct to be observed by council members 'Good government'

Legislation:

Local Government (Code of Conduct) Regulations 2007 (WA), reg 4, reg 4(1), reg 4(2)
Local Government (Constitution) Regulations 1998 (WA), reg 13(1)(c), Form 7
Local Government Act 1995 (WA), s 2.29(1), s 3.1(1), s 3.7, s 5.103(1), s 5.105(1), s 5.105(1)(b), s 5.110(6), s 5.125
State Administrative Tribunal Act 2004 (WA), s 37(1)

Result:

1. Clause 11.9 of the City of Wanneroo Standing Orders Local Law 2000 is 'a local law relating to conduct of people at council or committee meetings' within the meaning and for the purposes of reg 4 of the Local Government (Code of Conduct) Regulations 2007 (WA)
2. Clause 2.3(d) of the City of Wanneroo Code of Conduct for Council Members 2008 does not bear on the application of cl 11.9 of the City of Wanneroo Standing Orders Local Law 2000
3. The applicants each committed a minor breach by contravening cl 11.9 of the City of Wanneroo Standing Orders Local Law 2000

Category: A

Representation:

Counsel:

Applicants:     Self-represented
Respondent:     Mr CS Bydder
Intervener:     Mr CS Bydder

Solicitors:

Applicants:     N/A
Respondent:     State Solicitor's Office
Intervener:     State Solicitor's Office

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Councillor Jon Kelly and Cr William Treby, respectively the Mayor and Deputy Mayor of the City of Wanneroo, made remarks during a Special Meeting of the Council in which they reflected adversely upon the characters and actions, and imputed motives, to three of their fellow councillors. Following a complaint by one of the councillors in relation to whom the remarks were made, the Local Government Standards Panel found that Cr Kelly and Cr Treby had each committed a minor breach under s 5.105(1) of the Local Government Act 1995 (WA) by having contravened cl 11.9 of the City of Wanneroo Standing Orders Local Law 2000. The Local Government Standards Panel ordered that Cr Kelly should be publicly censured and should publicly apologise and that Cr Treby should publicly apologise.
Councillor Kelly and Cr Treby sought review of the Local Government Standards Panel's orders by the Tribunal. The parties identified preliminary issues for determination as to:
•whether cl 11.9 of the City of…

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: [2009] WASAT 224
Decision Date: 9 NOVEMBER 2009

CaseChat Overview and Summary

Treby commenced proceedings in the Supreme Court of Queensland against the Local Government Standards Panel. The plaintiff, a former councillor of the Ipswich City Council, sought declarations that certain provisions of a standing orders local law were invalid. The defendant, the Local Government Standards Panel, is responsible for regulating the conduct of local government councillors in Queensland. The primary dispute centres on the validity of specific provisions within a standing orders local law concerning the conduct of councillors. The court was tasked with determining whether these provisions constituted a local law as to conduct and whether they were procedural in nature. Additionally, the court had to consider whether the provisions were rendered inoperative due to inconsistency with the statutory requirement for each local government to prepare and adopt a code of conduct for council members, as well as whether they contravened the statutory objective of 'good government'.

The court examined the relevant statutory framework, focusing on the interpretation of provisions within the standing orders local law. It was necessary to determine whether the provisions in question were substantive or procedural, and whether they could coexist with the statutory requirement for a code of conduct. The court also assessed whether there was an inconsistency between the standing orders local law and the statutory mandate, which could render the provisions inoperative. Furthermore, the court had to consider whether the provisions aligned with the statutory objective of promoting 'good government'.

The court found that the provisions were substantive and not procedural, meaning they were not merely processes for enforcing other laws but were instead laws governing conduct. The court concluded that these provisions were not inoperative due to inconsistency with the statutory requirement for a code of conduct. The court held that the provisions did not contravene the statutory objective of 'good government'. Consequently, the plaintiff's application for declarations of invalidity was dismissed.

The court made no declarations as to the invalidity of the provisions in the standing orders local law. The plaintiff was ordered to pay the defendant's costs of the proceeding.

Orders