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

1. 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.

2. 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 Wanneroo Standing Orders Local Law 2000 is a local law relating to conduct, with the consequence that non­compliance with this provision is a minor breach; and

   •whether cl 2.3(d) of the City of Wanneroo Code of Conduct for Council Members 2008 bears on the application of cl 11.9 of the City of Wanneroo Standing Orders Local Law 2000, with the consequence that Cr Kelly and Cr Treby were entitled to make improper or derogatory allegations at the meeting, provided that they were true and in the public interest.

3. The Tribunal rejected Cr Kelly's and Cr Treby's arguments that cl 11.9 of the City of Wanneroo Standing Orders Local Law 2000 is a local law relating to procedure, rather than to conduct, and that it is inoperative because it is inconsistent with provisions of the Local Government Act 1995 (WA).  The Tribunal determined that 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 of the district according to his or her best judgment and ability, without reflecting adversely upon the character or actions of another member or an officer of the local government or importing any motive to a member or officer.  Indeed, good government requires courtesy among those elected to govern.

4. The Tribunal also rejected Cr Kelly's and Cr Treby's argument that cl 11.9 of the City of Wanneroo Standing Orders Local Law 2000 is inoperative because it is inconsistent with s 5.103(1) of the Local  Government Act 1995 (WA) which states that '[e]very local government is to prepare [and] adopt a code of conduct to be observed by council members, committee members and employees'.  The code of conduct adopted by the Council is a separate and distinct source of obligation in relation to personal behaviour of members of the Council to cl 11.9.

5. In consequence of the Tribunal's findings and the concessions made by Cr Kelly and Cr Treby, each councillor committed a minor breach under the legislation.  The matters were therefore listed for further hearing in relation to the determination of an appropriate penalty for each minor breach.

Introduction

1. At the Special Meeting of the City of Wanneroo (City) Council (Council) held on 25 July 2008, Cr Jon Kelly, the Mayor of the City and a councillor of the Council, and Cr Brett Treby, the Deputy Mayor of the City and a councillor of the Council, each made remarks during the debate in relation to the City's 2008/2009 annual budget.  Councillor Kelly and Cr Treby each concede that, in their remarks, they reflected adversely upon the characters and actions of or imputed motives to three of their fellow councillors.  It is, therefore, unnecessary to set out Cr Kelly's and Cr Treby's remarks in these reasons.  It is sufficient to record that Cr Kelly's and Cr Treby's concessions were properly made.  Councillor Kelly and Cr Treby also concede that the Council did not resolve, without debate, that the motion then before the Council could not be adequately considered otherwise than by them reflecting adversely upon the characters and actions or imputing motives to their fellow councillors.

2. Section 5.105(1) of the Local Government Act 1995 (WA) (LG Act) states, in part, as follows:

   A council member commits a minor breach if he or she contravenes ­

   …

   (b)a local law under this Act, contravention of which the regulations specify to be a minor breach.

3. Regulation 4 of the Local Government (Rules of Conduct) Regulations 2007 (WA) (Rules of Conduct Regulations) states as follows:

   (1)In this regulation ­

   Local law as to conduct means a local law relating to conduct of people at council or committee meetings.

   (2)The contravention of a local law as to conduct is a minor breach for the purposes of section 5.105(1)(b) of the [LG] Act.

4. Clause 11 of the City of Wanneroo Standing Orders Local Law 2000 (Standing Orders) relates to rules of debate at meetings of the Council.  As at 25 July 2008, cl 11.9 of the Standing Orders stated as follows:

   A member shall not reflect adversely upon the character or actions of another member or 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.

5. On 17 December 2008, following a complaint of minor breach by one of the councillors in relation to whom Cr Kelly and Cr Treby made remarks during the meeting on 25 July 2008, the Local Government Standards Panel (Panel) found that Cr Kelly and Cr Treby had each committed a minor breach under s 5.105(1)(b) of the LG Act by having contravened cl 11.9 of the Standing Orders in their remarks made at the Council meeting.  On 19 May 2009, the Panel decided, pursuant to s 5.110(6) of the LG Act, that the minor breaches should be dealt with by ordering that Cr Kelly should be publicly censured and should publicly apologise, and that Cr Treby should publicly apologise.

6. On 16 June 2009, Cr Kelly and Cr Treby each sought review by the Tribunal, pursuant to s 5.125 of the LG Act, of the decision of the Panel to make an order in their case. On 21 July 2009, the Attorney General for Western Australia intervened in each proceeding pursuant to s 37(1) of the State Administrative Tribunal Act 2004 (WA).

7. On 14 August 2009, the Tribunal listed the following preliminary issues for determination:

   1)Whether cl 11.9 of the Standing Orders 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 Code of Conduct Regulations.

   2)Whether cl 2.3(d) of the City of Wanneroo Code of Conduct for Council Members 2008 (Code) bears upon the application of cl 11.9 of the Standing Orders and, if so, how.

8. The Tribunal will address each of these preliminary issues in turn.

Is cl 11.9 of the Standing Orders a local law relating to conduct?

1. By its terms, cl 11.9 of the Standing Orders relates to the conduct of persons, namely, members of Council, at Council meetings.  The noun 'conduct' is relevantly defined by The Macquarie Dictionary Online to mean 'personal behaviour; way of acting; deportment: good conduct'.  However, Cr Kelly and Cr Treby submitted that cl 11.9 of the Standing Orders is not a local law relating to conduct, within the meaning or for the purposes of reg 4 of the Rules of Conduct Regulations, for each of two reasons.

2. First, Cr Kelly and Cr Treby submitted that cl 11.9 of the Standing Orders is not a local law as to conduct, but rather, is a local law as to procedure.  They emphasised the concluding part of cl 11.9 of the Standing Orders, namely, 'unless the Council resolves, without debate, that the motion then before the Council cannot otherwise be adequately considered'.  They argued:

   Failure to obtain a council resolution prior to reflecting adversely and/or 'imputing motive' is a failure to follow due process and therefore, not a breach of a local law relating to conduct.

3. However, this submission misconstrues the meaning and effect of cl 11.9 of the Standing Orders in general and the concluding part of this provision in particular.  The contravention of cl 11.9 of the Standing Orders committed by Cr Kelly and Cr Treby was not their failure to obtain a Council resolution, without debate, that the motion then before the Council could not otherwise be adequately considered, but rather reflecting adversely upon the character or actions of other members and imputing motives to other members.  Clause 11.9 of the Standing Orders relates to conduct of people at meetings of the Council, because it precludes a member from reflecting adversely upon the character or actions of another member or an officer of the City or imputing any motive to a member or an officer.  The words commencing with 'unless' provide an exception to the preclusion of this conduct; they do not transform a local law as to conduct into a local law as to procedure.

4. Second, Cr Kelly and Cr Treby submitted that cl 11.9 of the Standing Orders is not a local law relating to conduct for the purposes of reg 4 of the Rules of Conduct Regulations, because it is, relevantly, inoperative, by reason of inconsistency with provisions of the LG Act.  Section 3.7 of the LG Act states as follows:

   A local law made under this Act is inoperative to the extent that it is inconsistent with this Act or any other written law.

5. Councillor Kelly and Cr Treby referred to s 3.1(1) of the LG Act, which states that the general function of a local government 'is to provide for the good government of persons in its district'.  They submitted that this provision 'firmly establishes the principle of public interest in Western Australian Local Government'.  They also referred to s 2.29(1) of the LG Act, which requires a person elected as a councillor to make a declaration in the prescribed form before acting in the office.  The prescribed form, namely, Form 7 in the Local Government (Constitution) Regulations 1998 (WA) (Constitution Regulations) (see reg 13(1)(c) of the Constitution Regulations), states that a councillor:

   … will duly, faithfully, honestly, and with integrity, fulfil the duties of the office for the people in the district according to the best of [his or her] judgment and ability, and will observe the Local Government (Rules of Conduct) Regulations 2007.

6. However, cl 11.9 of the Standing Orders is not inconsistent with these provisions.  These provisions are expressed in very general terms.  They do not expressly or by implication allow councillors to reflect adversely upon the character or actions, or impute any motive to, another member or an officer of the local government.  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.

7. Section 3.1(1) of the LG Act refers to 'good government', not 'public interest', and certainly does not devolve to individual councillors the right to determine for themselves where the public interest lies.  It is the Council, as a corporate body, that is to provide good government for the persons in the district.  It is not inconsistent with s 3.1(1) of the LG Act or s 2.29(1) of the LG Act and the member's prescribed declaration that a councillor should only by permitted to reflect adversely upon the character or actions of another member or officer or to impute any motive to a member or officer in circumstances where the Council has resolved, without debate, that the motion then before the Council cannot otherwise be adequately dealt with.

8. Furthermore, the member's prescribed declaration specifically requires the member to observe the Rules of Conduct Regulations.  This also precludes any potential inconsistency between s 2.29(1) of the LG Act and the member's declaration, on the one hand, and reg 4 of the Code of Conduct Regulations and cl 11.9 of the Standing Orders, on the other hand.

9. It follows that the answer to the first preliminary issue is:

   'Yes ­ cl 11.9 of the Standing Orders 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 Code of Conduct Regulations.'

Does cl 2.3(d) of the Code bear on the application of cl 11.9 of the Standing Orders?

1. Councillor Kelly and Cr Treby contended that, under s 3.7 of the LG Act, cl 11.9 of the Standing Orders is inoperative because it is inconsistent with s 5.103(1) of the LG Act.  Section 5.103(1) of the LG Act states as follows:

   Every local government is to prepare [and] adopt a code of conduct to be observed by council members, committee members and employees.

2. Clause 2.3 of the Code concerns personal behaviour and states, in part, as follows:

   A member must:

   (a)act, and be seen to act, properly and in accordance with the requirements of the law and the terms of this Code;

   …

   (d)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.

3. Councillor Kelly and Cr Treby emphasised the words in s 5.103(1) of the LG Act that the adopted code of conduct is 'to be observed by Council members … '.  They submitted that cl 11.9 of the Standing Orders is inconsistent with s 5.103(1) of the LG Act, because it restricts a member's 'observance' of the Code by making allegations which are improper or derogatory if they are true and in the public interest.

4. However, cl 11.9 of the Standing Orders is not inconsistent with s 5.103(1) of the LG Act for three reasons.

5. First, s 5.103(1) of the LG Act imposes an obligation on every local government to prepare and adopt a code of conduct to be observed by council members, committee members and employees.  The section does not impose an obligation on council members, committee members and employees to observe the adopted code of conduct.  A code of conduct is not a local law as to conduct, the contravention of which would be a minor breach under s 5.105(1)(b) of the LG Act and reg 4 of the Rules of Conduct Regulations.  Rather, the obligation to observe the Code adopted by the Council is found in Pt 4 of the Code itself, which provides for the making of, and dealing with, complaints about contravention of provisions of the Code.

6. Second, the meaning and effect of para (d) of cl 2.3 of the Code is to be determined in the context of the provision read as a whole.  It is clear from para (a) of cl 2.3 of the Code that a member must comply both with 'the requirements of the law', including cl 11.9 of the Standing Orders, and 'the terms of this Code'.  Read in context, it is not the intention of cl 2.3(d) of the Code to allow conduct during Council debates that is precluded by cl 11.9 of the Standing Orders.

7. Third, cl 2.3(d) of the Code is a general provision relating to conduct of members of the Council.  In contrast, cl 11.9 of the Standing Orders is a specific provision relating only to conduct during Council debates.  Generally, in statutory interpretation, a general provision does not override a specific provision: see DC Pearce and R Geddes, Statutory Interpretation in Australia (Butterworths, 6th ed, 2006) at [7.19].  Therefore, even if cl 11.9 of the Standing Orders were otherwise inconsistent with s 5.103(1) of the LG Act/cl 2.3(d) of the Code, on the proper interpretation of the provisions, cl 11.9 of the Standing Orders, being a specific provision, would not be inconsistent with the general provisions of s 5.103(1) of the LG Act and cl 2.3(d) of the Code.

8. It follows that cl 11.9 of the Standing Orders is not inoperative.  Clause 2.3(d) of the Code is a separate and distinct source of obligation in relation to personal behaviour of members of the Council to cl 11.9 of the Standing Orders.  The answer to the second preliminary issue is:

   'No ­ cl 2.3(d) of the Code does not bear upon the application of cl 11.9 of the Standing Orders.'

Conclusion

1. Clause 11.9 of the Standing Orders is a local law as to conduct under reg 4 of the Rules of Conduct Regulations.  The contravention of cl 11.9 of the Standing Orders is a minor breach for the purposes of s 5.105(1)(b) of the LG Act under reg 4 of the Rules of Conduct Regulations.  Clause 2.3(d) of the Code does not bear upon the application of cl 11.9 of the Standing Orders.

2. In consequence of these findings, and the concessions made by Cr Kelly and Cr Treby, each councillor committed a minor breach by contravening cl 11.9 of the Standing Orders.  The matters should now proceed to the determination of an appropriate penalty for each minor breach under s 5.110(6) of the LG Act.

Orders

1. The Tribunal makes the following orders:

   1.The preliminary issues are answered as follows:

   (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 upon the application of cl 11.9 of the City of Wanneroo Standing Orders Local Law 2000.

   2.Proceedings DR 238 of 2009 and DR 239 of 2009 are listed for further hearing at 2 pm on 20 November 2009 in order to determine an appropriate penalty under s 5.110(6) of the Local Government Act 1995 (WA) in relation to the minor breach committed by each applicant and in order to finalise each proceeding.

I certify that this and the preceding [33] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR D R PARRY, SENIOR MEMBER