YATES and LOCAL GOVERNMENT STANDARDS PANEL - [2012] WASAT 23

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: LOCAL GOVERNMENT ACT 1995 (WA)

CITATION: YATES and LOCAL GOVERNMENT STANDARDS PANEL [2012] WASAT 23

MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)

HEARD: 25 OCTOBER 2011 AND 16 JANUARY 2012

DELIVERED : 16 JANUARY 2012

FILE NO/S: DR 217 of 2011

BETWEEN: DONALD YATES
Applicant
AND
LOCAL GOVERNMENT STANDARDS PANEL
Respondent
ATTORNEY-GENERAL FOR WESTERN AUSTRALIA
Intervener

Catchwords:

Local government - Regulation of councillors - Minor breach - Banners authorised by councillor placed on boundary fence of reserve under the care, control and management of local government - Whether boundary fence is a 'resource' of local government Words & phrases: 'resource'

Legislation:

Local Government (Rules of Conduct) Regulations 2007 (WA), reg 8
Local Government Act 1995 (WA), s 1.4, s 5.104(1), s 5.105(1), s 5.110(6), s 5.110(6)(a), s 5.110(6)(b), s 5.125(1)

Result:

Applicant committed breach of reg 8 of the Local Government (Rules of Conduct) Regulations 2007 (WA)
Complaint dismissed as none of the potential sanctions were appropriate

Category: B

Representation:

Counsel:

Applicant:     Self-represented
Respondent:     Mr IA Repper
Intervener:     Mr IA Repper

Solicitors:

Applicant:     Self-represented
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

The Local Government Standards Panel found that Mr Donald Yates, when a council member of the Town of Bassendean, committed a breach of reg 8 of the Local Government (Rules of Conduct) Regulations 2007 (WA) by using a local government resource, namely, the boundary fence of Bassendean Oval, without authorisation, for the purpose of the interests of a community group known as 'Fresh Faces, New Directions', by placing or causing to be placed four banners on the boundary fence. Mr Yates sought review by the Tribunal.
At the final hearing on 25 October 2011, Mr Yates raised a question about whether the fence to which the banners were attached was owned by a football club and was, therefore, not a local government resource. The hearing was adjourned to 16 January 2012 to allow Mr Yates to clarify his contention and to allow the Local Government Standards Panel, and the AttorneyGeneral for Western Australia, who intervened, to respond. At the reconvened hearing, Mr Yates gave evidence that he had placed two banners on fences at Bassendean Oval owned by the football club and had given two banners to members of a local netball team sponsored by Fresh Faces, without any express instruction as to what to do with them, together with pamphlets to distribute at a football match at Bassendean Oval that day. Mr Yates claimed that the members of the netball team exercised 'initiative' by moving the two banners he had placed on the club fence to a fence on land under the care, control and management of the Town of Bassendean and by also placing the two banners he gave to them on another part of the same fence under the care, control and management of the Town.
Following the hearing, the Tribunal gave an oral decision in which it found that Mr Yates had placed or caused to be placed all four banners on the boundary fence of Bassendean Oval which was under the care, control and management of the Town of Bassendean, in contravention of reg 8. The Tribunal did not accept the veracity of Mr Yates' evidence about having placed two of the banners on a fence owned by the football club and about not having given any express instructions to the members of the netball team to place the banners on the fence under the care, control and management of the Town of Bassendean. However, even if his evidence had been accepted, giving the banners to the members of the netball team, and their placement on the fence, would have involved indirect use of a local government resource in contravention of the regulation. The Tribunal also determined that the boundary fence on land under the care, control and management of the Town of Bassendean is a 'resource' of the Town. The Tribunal therefore affirmed the decision of the Local Government Standards Panel.
Finally, the Tribunal noted that the circumstances of this case highlighted the question of whether consideration should be given to amending the Local Government Act 1995 (WA) to enable an order to be made that, although a complaint has been established, none of the specified sanctions should be imposed, rather than dismissing the complaint.
The Tribunal's reasons, taken from the transcript and edited in minor respects, were as follows.

Introduction

This proceeding involves an application brought by Mr Donald Yates, pursuant to s 5.125(1) of the Local Government Act 1995 (WA) (LG Act), for review of the decision of the Local Government Standards Panel (Panel) that Mr Yates committed a 'minor breach' under s 5.105(1) of the LG Act on 5 September 2009. The finding of minor breach by the Panel is as follows:
That on that date you committed a breach of regulation 8 of the Local Government (Rules of Conduct) Regulations 2007 by using a Town of Bassendean resource (namely the boundary fence at Bassendean Oval) to place or cause the placement of four banners on it, for the purpose of the interests of the beneficiaries and other persons associated with the brand 'Fresh Faces, New Directions' without such use and such purpose being authorised under the Local Government Act 1995 (the Act) or by the Council or the Town's Chief Executive Officer.
Having made this finding, the Panel decided to deal with the breach under s 5.110(6) of the LG Act, pursuant to paragraph (a) of that subsection, by dismissing the complaint.

Legislative background

Section 5.104(1) of the LG Act states as follows:
Regulations may prescribe rules, to be known as the rules of conduct for council members, that council members are required to observe.
The Local Government (Rules of Conduct) Regulations 2007 (WA) (Conduct Regulations) were made pursuant to s 5.104(1) of the LG Act. Regulation 8 of the Conduct Regulations states as follows:
A person who is a council member must not either directly or indirectly use the resources of a local government
(a)for the purpose of persuading electors to vote in a particular way at an election, referendum or other poll held under the Act, the Electoral Act 1907 or the Commonwealth Electoral Act 1918; or
(b)for any other purpose,
unless authorised under the Act, or authorised by the council or the CEO, to use the resources for that purpose.
Section 5.105(1) of the LG Act states that:
A council member commits a minor breach if he or she contravenes
(a)a rule of conduct under section 5.104(1); …
Thus, a contravention of reg 8 of the Conduct Regulations involves a minor breach for the purposes of the LG Act.

Factual background

Most of the land known as Bassendean Oval is comprised in Lot 246 on Deposited Plan 220760, which is Crown land and a reserve for the purpose of recreation, namely, Reserve No 7401, under a management order in favour of the Town of Bassendean (Town or Council) (reserve land). Subject to the consent of the Minister for Lands, the Town may lease the reserve land for up to 21 years. A relatively small part of Bassendean Oval, which is Lot 236 on Deposited Plan 189576, located on Guildford Road, with an area of 3,273 square metres, is freehold land owned by the Swan Districts Football Club Inc (club land).
On 7 May 2003, the Town granted a licence over the reserve land to the club to use the land and facilities solely in connection with training, Western Australian Football League (WAFL) fixtures and nonWAFL fixtures for five years, with two fiveyear options. It appears that, although the written licence had come to an end on 6 May 2008 and the option had not been exercised, the club continued to hold over as licensee with the consent of the Town after that time while a fresh licence agreement was being negotiated, and that the club was the licensee in that capacity as at 5 September 2009.
It is common ground in this review that:
a)as at 5 September 2009, Mr Yates was a council member of the Town, and was also involved in a community group known as 'Fresh Faces, New Directions' (Fresh Faces) which was an initiative of the Village Green Community Foundation;
b)the Town's ordinary elections of Council members in 2009 was scheduled to occur and did occur on 17 October 2009;
c)on 5 September 2009, Mr Yates placed or caused to be placed banners on the boundary fence at Bassendean Oval before or during the semifinal football match between the club and another WAFL club (match). The banners contained the logo of Fresh Faces, namely, the words 'Fresh Faces, New Directions' in white on a black banner with the letters 'TM' below it and also a web site, The banners stated 'Authorised by Cr Don Yates, printed by BannerShop Australia, 10 Thompson Road';
d)on 5 September 2009, banners containing the logo and words set out in c) above were placed on the boundary fence on either side of both entrance gates at Bassendean Oval;
e) on 5 September 2009, in the surrounds of both entrance gates at Bassendean Oval, before or during the match, the representatives of the Bassendean and Swan Rangers Netball teams (netball teams) distributed to persons seeking entrance to the oval a written pamphlet that had been provided to them by Mr Yates with the logo of Fresh Faces at the top and the bottom of the first page, and also appearing twice on the reverse page. The pamphlet referred to financial support by Fresh Faces for the netball teams and featured five photographs of candidates for election in the Council elections scheduled to occur on 17 October 2009 with their names and wards on page 1 and a short statement from each candidate on the reverse page. At the bottom of page 1, the pamphlet stated, 'Use your postal vote for change and support these candidates to achieve New Directions in our Bassendean'. At the bottom of the reverse side of the pamphlet, it stated, 'These candidates are welcomed supporters of followed by the Fresh Faces logo; and
f)the placement of the banners on the boundary fence on either side of both entrance gates at Bassendean Oval was not authorised under the LG Act or by the Council or the Council's Chief Executive Officer (CEO).
In his statement of issues, facts and contentions dated 4 August 2011 and in his statement of issues, facts and contentions with further clarification information dated 2 September 2011, Mr Yates did not contest the Panel's finding, nor the Attorney-General's contention, that, on 5 September 2009, he placed or caused to be placed the four banners on either side of both entrance gates at Bassendean Oval. Indeed, Mr Yates said, 'The applicant accepts that he was responsible for the banners being placed on the fence of Bassendean Oval on 5 September 2009'.
However, at the hearing of this matter on 25 October 2011, Mr Yates contended that the club, rather than the Crown or the Town, has title to part of the fence at Bassendean Oval. The hearing was then adjourned in order to enable Mr Yates to clarify his contention and for the Panel and the AttorneyGeneral to respond. At a directions hearing on 16 December 2011, Mr Yates said that he attached the banners, which are shown in the photographs in evidence on which the Panel and the AttorneyGeneral rely. In particular, order 1 made on 16 December 2011 states as follows:
The Tribunal notes that following discussion at the directions hearing today, the applicant deletes paragraph 12 of the statement of issues, facts and contentions with further clarification information filed on 12 December 2011 and replaces that paragraph with the following:
Mr Yates says:
(1)That he attached the signs shown in the photographs, on which the respondent/intervener rely, to a part of the fence at Bassendean Oval owned by the Swan Districts Football Club Inc (Club).
(2)The photographs showing the signs, on which the respondent/intervener rely, at Bassendean Oval appear to be of a different part of the fence that is actually owned by the State of Western Australia (State).
(3)The Town of Bassendean (Town) does not own the fence to which the signs were attached (either the fence owned by the Club, or the fence owned by the State) and
(a)the Town cannot sell it;
(b)it is not on the Town's asset register; and
(c)there would be no compensation to the Town for loss of a fence if the Bassendean Oval were redeveloped entirely, or in part.
When the final hearing was reconvened this afternoon, Mr Yates said in evidence that he attached two of the banners to the club land one on Guildford Road, and one between the carpark and the members' entrance to the club land and that he gave two of the banners to members of the netball teams without any express instruction as to what to do with them. Mr Yates said that he also gave these members of the netball teams copies of the pamphlet referred to at e) above and told them to 'have a great day' while handing out the pamphlets.
Mr Yates said that the members of the netball teams had shown 'initiative' and had moved the two banners that he had placed on the club land fence to adjacent to one of the two main entrances to Bassendean Oval, and that the members of the netball teams had attached the two other banners that Mr Yates had given them adjacent to the other main entrance to Bassendean Oval.

Consideration of the application for review

Mr Yates contended that he has not committed a breach of reg 8 of the Conduct Regulations on essentially four bases.
First, Mr Yates said that he attached two of the banners to the boundary fence of the club land, not the boundary fence of the reserve land, and therefore he did not use the resources of the Town. As I recounted earlier, Mr Yates also said today that he gave the other two banners to the members of the netball teams, without any express instructions as to what to do with them, together with the copies of the pamphlet.
I do not accept the evidence of Mr Yates in this respect as truthful for three reasons.
First, Mr Yates did not make the points he made today in his response to the complaint to the Panel on 25 January 2011, in his statement of issues, facts and contentions dated 4 August 2011, or in his statement of issues, facts and contentions with further clarification information dated 2 September 2011. Indeed, each of these documents is premised on the basis that Mr Yates did place, or at least cause to be placed, the four banners on the boundary fence of the reserve land, although he contended, for reasons to which I will come, that placement of the signs on that fence did not involve a breach of reg 8.
In his response to the Panel, Mr Yates set out the allegation against him in express terms, including the words that he placed or caused to be placed the signs at the entrances to the Bassendean Oval. Order 4 made by the Tribunal on 1 July 2011 required Mr Yates, by 5 August 2011, to file with the Tribunal and give to the Panel and to the AttorneyGeneral his own statement of issues, facts and contentions responding to each paragraph in the Panel's or in the AttorneyGeneral's statement, and stating 'whether the applicant accepts or rejects the issue, fact or contention identified by the respondent or intervenor' and also setting out 'any other issues, facts and contentions it says are relevant to the decision under review'.
Given that the issue of how the four banners came to be attached to the boundary fence of Bassendean Oval was central to the complaint made against him, one would reasonably expect that, if the evidence given by Mr Yates about that matter today were true and correct, he would have said that in his response to the Panel on 25 January 2011, and certainly in his statements of issues, facts and contentions filed in accordance with the Tribunal's orders to which I have referred.
Second, when asked by Mr IA Repper, who appeared on behalf of the Panel and the AttorneyGeneral at the hearing, as to why he did not previously say what he said today, Mr Yates did not give a satisfactory explanation.
Thirdly, it is far more likely that the signs would have been placed at the public entrances in a prominent location.
However, even if one were to accept Mr Yates' evidence that he gave two of the signs to members of the netball teams to hand out, I accept the submission made by Mr Repper that that would be, together with the other evidence, sufficient to satisfy the Tribunal of a breach of reg 8 of the Conduct Regulations. The Conduct Regulations refer to either direct or indirect use of the resources of a local government.
If one were to accept the evidence that Mr Yates gave today, I would find, at least in relation to the two banners given by Mr Yates to members of the netball teams, together with pamphlets to be handed out on a particular day, that the giving of those banners to the members of the netball teams and their subsequent placement on the boundary fence of Bassendean Oval involved a council member indirectly using the resources of a local government. As Mr Repper submitted, Mr Yates would reasonably have expected the banners to be placed on the reserve land that day and he would, therefore, have indirectly used the resources of the Town.
Mr Yates' second basis for contending that he has not committed a breach of reg 8 is that the boundary fence on either side of the entrances to Bassendean Oval is not a 'resource' of the Town, because it is the property of the Crown, cannot be sold by the Town, would not be compensatable if the Oval were redeveloped, and is not on the asset register of the Town.
The term 'resource' is not defined in the Conduct Regulations or in the LG Act. However, the term 'local government property' is defined in s 1.4 of the LG Act to mean 'anything, whether land or not, that belongs to, or is vested in, or under the care, control or management of, the local government'.
The noun 'resource' is relevantly defined in The Macquarie Dictionary (5th ed, 2009) at page 1408 as '(Often plural) Money or any property which can be converted into money; assets'. While the boundary fence at Bassendean Oval cannot be converted into money by the Town, it is an 'asset' of the Town. The noun 'asset' is defined at page 91 of The Macquarie Dictionary as 'a useful thing or quality' and 'an item of property; an economic resource'.
The boundary fence of the reserve land, being attached to land the subject of a management order in favour of the Town, is a useful thing and an item of property under the care, control and management of the Town, and therefore a 'resource' of the Town. The fact that the fence is not owned by the Town, cannot be sold by the Town, and would not be the subject of any compensation if the Oval were redeveloped, does not, in my view, alter this conclusion.
A council office that is leased by a local government, or a photocopying machine or a motor vehicle that is leased by a local government, is a 'resource' of the local government, even if it is not owned by the local government and cannot be sold by it. This interpretation is also supported, in my view, by the definition of 'local government property' in the LG Act to which I have referred. As Mr Repper submitted, '[r]esource is a broader term than local government property', encompassing a wider concept. The boundary fence on the reserve land is local government property within the definition of that term and is also a 'resource' of the Town.
A purposive interpretation of reg 8 of the Conduct Regulations also arrives at the same result. It would promote the evident purpose of reg 8 to preclude use of local government resources without authorisation to include items under the care, control and management of the local government, such as the oval and the boundary fences upon it, within the term 'resources'. In contrast, the interpretation advanced by Mr Yates would, in my view, undermine the achievement of the evident purpose of reg 8.

The asset register relied on by Mr Yates states that it relates to 'Group: Buildings'. The following list is then of buildings including four at Bassendean Oval, but the list does not specifically refer to fences. As Mr Repper submitted, the asset register relied on by Mr Yates is not an exhaustive statement of the Town's assets, much less of its 'resources', and is not determinative even in relation to its assets.
Third, Mr Yates submitted that the finding of the Panel would lead to an absurd result that use of any park or road under the care, control and management of a local government by a council member of that local government would involve a breach of reg 8 of the Conduct Regulations.
However, reg 8 of the Conduct Regulations does not apply to a use of a resource of a local government that is 'authorised by the Act'. A council member, along with all other members of the public, is authorised under the LG Act to use a public park for recreation and to use a public road for vehicular or pedestrian movement. However, a council member is not authorised under the LG Act, and would require approval of the Council or the CEO under reg 8 of the Conduct Regulations, to place a sign such as the banners in question in this case directly or indirectly on a public park or a road reserve vested in or under the care, control and management of the local government.
Finally, Mr Yates submitted that the northeast entrance to Bassendean Oval is not within the reserve land, but on the road reserve. However, this argument was raised for the first time at the resumed hearing today. Neither in his response to the Panel nor in his statements of issues, facts and contentions filed on three occasions in this proceeding, was this argument raised. Furthermore, Mr Yates presented no evidence in support of this contention other than referring to cadastral boundaries superimposed on an aerial photograph tendered by the Panel and the Attorney-General that clearly given that club buildings appear to straddle the reserve land has a degree of imprecision in the superimposition. Finally, it is extremely unlikely that the two main entrances to Bassendean Oval would not be included within the reserve land subject to the management order.
For these reasons, the Tribunal finds that, on 5 September 2009, Mr Yates placed or caused to be placed four banners on the boundary fence of Bassendean Oval, in contravention of reg 8 of the Conduct Regulations, and therefore committed a minor breach.

How should the breach be dealt with?

Section 5.110(6) of the LG Act states:
The breach is to be dealt with by
(a)dismissing the complaint;
(b)ordering that
(i)the person against whom the complaint was made be publicly censured as specified in the order;
(ii)the person against whom the complaint was made apologise publicly as specified in the order; or
(iii)the person against whom the complaint was made undertake training as specified in the order;
or
(c)ordering 2 or more of the sanctions described in paragraph (b).
The Panel considered the breach in this case to be 'a trivial example of the conduct proscribed by reg 8', and therefore decided not to order any of the sanctions set out in s 5.110(6)(b) of the LG Act, and dismissed the complaint under s 5.110(6)(a) of the Act. I note that the Panel did not find that Mr Yates used the Town's resources for the purposes of persuading electors to vote in an election in a particular way under paragraph (a) of reg 8 of the Conduct Regulations. Rather, the Panel found that Mr Yates used the resources of the Town 'for any other purpose' within the meaning of paragraph (b) of reg 8 of the Conduct Regulations.
Although, when the signs are viewed in the context of the handing out of pamphlets featuring the same logo and plainly seeking to persuade electors to vote for candidates endorsed by Fresh Faces, there is a strong argument that the minor breach in this case falls within paragraph (a), rather than paragraph (b), of reg 8 of the Conduct Regulations, neither the Panel nor the AttorneyGeneral made that argument. In the circumstances of this case, therefore, it would not seem appropriate to consider a finding that the purpose of the use of the resources was to persuade electors as to how to vote. Had that been the finding, a strong public censure would have been an appropriate outcome.
As it is, and given that Mr Yates is no longer a member of the Council, none of the options in s 5.110(6)(b) of the LG Act are appropriate. It appears, therefore, that the only option is, as the Panel did, to dismiss the complaint under s 5.110(6)(a) of the LG Act, even though it has been proved. The decision of the Panel is therefore affirmed.
Finally, the Tribunal notes that the circumstances of this case highlight the question of whether consideration should be given to amending s 5.110(6) of the LG Act to add a paragraph (d) to the effect:
(d)ordering that, although the complaint is established, none of the sanctions described in paragraph (b) should be imposed in the circumstances of the case.

Orders

For the reasons set out earlier, the Tribunal makes the following order:
1.The decision of the respondent made on 6 April 2011 finding that the applicant committed a breach of regulation 8 of the Local Government (Rules of Conduct) Regulations 2007 (WA) by using a Town of Bassendean resource (namely, the boundary fence of Bassendean Oval) to place or cause the placement of four banners for the purpose of the interests of the beneficiaries and other persons associated with the brand 'Fresh Faces, New Directions', without such use and such purpose being authorised under the Local Government Act 1995 (WA) or by the Council or the Town's Chief Executive Officer, is affirmed.
2.The decision of the respondent given to the applicant on 25 May 2011 to dismiss the complaint pursuant to s 5.110(6)(a) of the Local Government Act 1995 (WA) is affirmed.

I certify that this and the preceding [45] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE D R PARRY, DEPUTY PRESIDENT