YATES and LOCAL GOVERNMENT STANDARDS PANEL
[2011] WASAT 196
•6 DECEMBER 2011
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION: YATES and LOCAL GOVERNMENT STANDARDS PANEL [2011] WASAT 196
MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)
HEARD: 25 OCTOBER 2011
DELIVERED : 6 DECEMBER 2011
FILE NO/S: DR 228 of 2011
BETWEEN: DONALD YATES
Applicant
AND
LOCAL GOVERNMENT STANDARDS PANEL
RespondentATTORNEY GENERAL FOR WESTERN AUSTRALIA
Intervener
Catchwords:
Local government - Regulation of councillors - Whether councillor made a 'statement' that a local government employee is incompetent or dishonest - Whether a 'statement' that a local government employee is incompetent or dishonest can be made by implication - Councillor said that costing for road works prepared by local government employee 'has been exaggerated' and that the local government employee's 'report [is] at a pricing to stop the budget' - Words and phrases: 'dishonest', 'statement'
Legislation:
Interpretation Act 1984 (WA), s 18
Local Government (Rules of Conduct) Regulations 2007 (WA), reg 10, reg 10(3), reg 10(3)(a)
Local Government Act 1995 (WA), s 5.104(1), s 5.105(1)(a), s 5.110(6), s 5.110(6)(b)(ii), s 5.125(1)
Result:
Finding of minor breach and imposition of public apology affirmed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr I Repper
Intervener: Mr I Repper
Solicitors:
Applicant: Self-represented
Respondent: State Solicitor's Office
Intervener: State Solicitor's Office
Case(s) referred to in decision(s):
Bell v Australasian Recyclers (WA) Pty Ltd (1986) ATPR 40644
Hargreaves and Local Government Standards Panel [2008] WASAT 300
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
At the ordinary meeting of the Town of Bassendean held on 13 July 2010, Mr Donald Yates, then a council member, spoke against a recommendation made by Mr Ian McDowell, a local government employee, in his report containing a cost estimate of roadworks, that the Council should take no further action in relation to the works. Mr Yates said during the debate that Mr McDowell's 'costing has been exaggerated' and that his report was 'at a pricing to stop the budget'.
Mr McDowell and a council member each complained about Mr Yates' statement. The Local Government Standards Panel found that Mr Yates committed a breach of reg 10(3)(a) of Local Government (Rules of Conduct) Regulations 2007 (WA) which relevantly states that a council member must not, at a council meeting at which members of the public are present, 'orally, in writing or by any other means … make a statement that a local government employee is incompetent or dishonest'. The Panel ordered Mr Yates to make a public apology to Mr McDowell in two newspapers. Mr Yates sought review by the Tribunal.
The contested issues for determination by the Tribunal were:
1.Whether a 'statement' can be made by implication; and
2.Whether Mr Yates' words at the Council meeting implied dishonesty or incompetence on the part of Mr McDowell.
The Tribunal determined that a 'statement', that is, a communication or declaration in speech or writing, can be made by implication, provided that the implication is sufficiently clear. The Tribunal also determined that for a council member to say that a local government employee 'exaggerated' a costing required by a resolution of the local government and presented the pricing in order to 'stop the budget', that is, in order that the local government would not proceed with the project, clearly implies that the employee is dishonest, in that he or she is not honourable in principles, intentions and actions, is not upright, is not truthful, creditable or candid, and has lied about the real cost of doing the work and is, therefore, disposed to lie.
The Tribunal therefore affirmed the Local Government Standards Panel's finding of breach. As Mr Yates' statement was a personal attack on Mr McDowell, the Tribunal considered that the publication of a public apology in the newspapers was an appropriate outcome.
Introduction
Between December 2008 and October 2011, Mr Donald Yates was a council member of the Town of Bassendean (Town or Council). At its ordinary council meeting held on 16 June 2010, the Council passed a motion, moved by Mr Yates, 'that a report be brought back to Council on how to upgrade Morley Drive between Wicks and Lord Street with additional revised nib and turning pocket treatments'.
At the next ordinary council meeting, held on 13 July 2010, Mr Ian McDowell, the Town's Manager Asset Services, presented a report in response to the resolution that contained 'a preliminary cost estimate' of $51,909 for the construction of a rounded nib and a right turn pocket at the intersection. The cost estimate was broken down into 16 components, but did not include costs associated with design work or service relocation. Mr McDowell recommended that the Council should resolve to take no further action in relation to the roadworks on the basis that 'the intersection is no longer a recognised accident Black Spot', 'traffic volumes and speeds are not considered a major issue', and a significant amount of vegetation had been removed, with the result that Main Roads WA was 'satisfied that motorists could safely execute a u-turn at the intersection'.
In the debate in relation to this item, Mr Yates spoke against Mr McDowell's recommendation. The whole of the transcript of what Mr Yates said is set out in Appendix A to these reasons. Materially, Mr Yates said that 'I seriously question some of the budget figures that are coming out that are being put before the Council', and proceeded to question, in particular, cost estimates in Mr McDowell's report in relation to signage, spreading sand and removing trees. Mr Yates then said:
In other words it's a report at a pricing to stop the budget.
Mr Yates then foreshadowed a motion:
… that … the Council seeks a review of the engineering treatment of the U turn and slip road at the intersection of Morley Drive and Wicks Street ah, and ah I guess it is for the community that I'm actually asking that situation because so many items that are coming out now where the pricing that comes before the Council to consider appears to be exaggerated, or we seem to be going for … . (Emphasis in bold added).
Following a point of order, Mr Yates continued as follows:
What we have here is a budget in the order of $50,000 to do this particular nib and slip road treatment. I guess really what I'd like to see is actually what a private contractor could actually do the nib and slip road treatment for. For example there is a cost in there, I think it is for about $5,000 for safety signage, road management related costs. Now these particular people on contract earn typically about $100/hour. What you are suggesting with a budget of something like $5,000 they're going to be there for a week. For a week to put in a slip road and nib suggests that again that the costing has been exaggerated. … . (Emphasis in bold added).
Mr McDowell and Ms Michelle Stubbs, a councillor of the Council, each made a complaint in relation to what Mr Yates said at the council meeting which was referred to the Local Government Standards Panel (Panel). The Panel found that, during the debate in relation to Mr McDowell's report, Mr Yates committed a breach of reg 10(3)(a) of the Local Government (Rules of Conduct) Regulations 2007 (WA) (Conduct Regulations):
… in that he orally made statements implying that Mr Ian Craig McDowell (a Town employee at the date and the author of the officer report that was before Council on such item) was dishonest by deliberately including in that report: (a) unnecessary items of expenditure to improperly inflate the total budget for the project concerned to such an extent that the Council would not approve the carrying out of the project; and (b) pricings that were dishonest in that they were deliberately 'exaggerated'.
Regulation 10(3)(a) of the Conduct Regulations states as follows:
If a person, in his or her capacity as a council member, is attending a council meeting, committee meeting or other organised event and members of the public are present, the person must not, either orally, in writing or by any other means -
(a)make a statement that a local government employee is incompetent or dishonest; …
The Conduct Regulations were made under s 5.104(1) of the Local Government Act 1995 (WA) (LG Act). Under s 5.105(1)(a) of the LG Act, a council member 'commits a minor breach if he or she contravenes … a rule of conduct under section 5.104(1)'.
Having found that Mr Yates committed a minor breach by contravening reg 10(3)(a) of the Conduct Regulations, the Panel dealt with the breach by ordering, pursuant to s 5.110(6)(b)(ii) of the LG Act, that Mr Yates publicly apologise to Mr McDowell by placing a Notice of Public Apology in The West Australian and the Eastern Suburbs Reporter newspapers.
Mr Yates has sought a review, pursuant to s 5.125(1) of the LG Act, of the Panel's decision. Mr Yates conceded that:
(1)He attended the Council meeting on 13 July 2010 in his capacity as a council member of the Town;
(2)The public were present at the meeting;
(3)During the debate in relation to Mr McDowell's report, Mr Yates said the words recorded in the transcript in Appendix A to these reasons and as extracted above; and
(4)As at the Council meeting on 13 July 2010, Mr McDowell was a local government employee.
However, Mr Yates contended that:
(1)A 'statement' within the meaning of reg 10(3)(a) of the Conduct Regulations cannot be made by implication; and
(2)Alternatively, the words he said at the Council meeting on 13 July 2010 did not imply dishonesty or incompetence on the part of Mr McDowell.
Did Mr Yates make a 'statement' that Mr McDowell is incompetent or dishonest within the meaning of reg 10(3)(a) of the Conduct Regulations?
The term 'statement' is not defined in the legislation. According to its most apposite ordinary meaning, a 'statement' is 'a communication or declaration in speech or writing setting forth facts, particulars, etc' (The Macquarie Dictionary, 5th edition, 2009, page 1609). A communication or declaration in speech or in writing can be made by implication, provided that the implication is sufficiently clear. Expressed in another way, a 'statement' does not have to be expressly made.
This has been recognised in decisions in relation to trade practices law. For example, in Bell v Australasian Recyclers (WA) Pty Ltd (1986) ATPR 40644 at 47 220, Toohey J observed that:
… a statement relating to future conduct may contain an implied statement as to present fact or past fact. It may represent impliedly that the promisor has a present intention to make good the promise and it may represent impliedly that he has the means to do so. (Emphasis in bold added).
Furthermore, s 18 of the Interpretation Act 1984 (WA) states:
In the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object.
As Deputy President Judge Chaney (as his Honour then was) said in Hargreaves and Local Government Standards Panel [2008] WASAT 300 at [17], reg 10 of the Conduct Regulations:
… is headed 'Relations with local government employees'. I accept the submissions of counsel for the Attorney General of Western Australia that reg 10(3) is designed to ensure that councillors do not use their position to publicly criticise employees within their local government. It is predicated on the proposition that concerns about the performance of employees should be dealt with within the local government organisation and through proper channels, rather than aired publicly in a council or committee meeting.
An interpretation of the word 'statement' that includes statements made by clear implication is consistent with, and promotes, the purpose of reg 10(3) of the Conduct Regulations to ensure that councillors do not use their position to publicly criticise local government employees. Criticism can be conveyed by implication. In contrast, Mr Yates' submission, that a 'statement' within the meaning of reg 10(3)(a) of the Conduct Regulations cannot be made by implication, would not promote the purpose of the regulation and, indeed, would compromise its efficacy.
Alternatively, Mr Yates submitted that he did not imply that Mr McDowell was either incompetent or dishonest, but said simply that he 'exaggerated' the cost of the road works because 'he did not want that project to proceed'.
However, the words said by Mr Yates, and in particular that 'the costing has been exaggerated' and that Mr McDowell's 'report [is] at a pricing to stop the budget', conveyed a clear implication that Mr McDowell is dishonest. The adjective 'dishonest' means 'not honest; disposed to lie, cheat or steal: a dishonest person' (The Macquarie Dictionary, page 481). 'Honest' means 'honourable in principles, intentions, and actions; upright: an honest person' and 'truthful; creditable; candid' (The Macquarie Dictionary, page 804). For a council member to say that a local government employee 'exaggerated' a costing required by a resolution of the local government and presented the pricing in order to 'stop the budget', that is in order that the local government would not proceed with the project, clearly implies that the employee is not honourable in principles, intentions and actions, is not upright, is not truthful, creditable or candid, and has lied about the real cost of doing the work and is therefore disposed to lie. Thus, Mr Yates, made a 'statement' at the council meeting on 13 July 2010 that Mr McDowell is dishonest.
The Panel's finding that Mr Yates committed a minor breach, under s 5.105(1)(a) of the LG Act, by breaching reg 10(3)(a) of the Conduct Regulations, should be affirmed. However, for the purposes of reg 10(3)(a), Mr Yates did not 'orally [make] statements implying that Mr … McDowell … was dishonest …', as expressed by the Panel. Rather, in terms of the terminology of reg 10(3)(a), Mr Yates orally made an implied statement that Mr McDowell was dishonest. The words by which Mr Yates conveyed the statement that Mr McDowell was dishonest were not an express statement such as that 'Mr McDowell is dishonest'. However, Mr Yates' words, particularly that Mr McDowell 'exaggerated' the costing and that his report is 'at a pricing to stop the budget', contained an implied statement that Mr McDowell was dishonest.
How should the minor breach be dealt with?
Section 5.110(6) of the LG Act states as follows:
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).
While the breach is a 'minor breach' under s 5.105(1)(a) of the LG Act, for a local government member to make a statement, even by implication, that a local government employee is dishonest, is a very serious matter. It would not be appropriate, therefore, to dismiss the complaint. As Mr Ian Repper, counsel for the Panel and the Attorney General submitted, given that Mr Yates' statement about Mr McDowell was a personal attack on Mr McDowell, a public apology by publication in The West Australian and the Eastern Suburbs Reporter is an appropriate outcome.
Conclusion
Mr Yates committed a 'minor breach' under s 5.105(1)(a) of the LG Act by contravening reg 10(3)(a) of the Conduct Regulations. At a Council meeting at which members of the public were present, Mr Yates made an implied statement that Mr McDowell was dishonest. It is appropriate that Mr Yates should publicly apologise to Mr McDowell by the placement of newspaper notices as ordered by the Panel, but amended to more closely reflect the terminology of reg 10(3)(a) of the Conduct Regulations.
Orders
The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent that, during a debate at the ordinary meeting of the Town of Bassendean on 13 July 2010, the applicant committed a minor breach under s 5.105(1)(a) of the Local Government Act 1995 (WA) by contravening reg 10(3)(a) of the Local Government (Rules of Conduct) Regulations 2007 (WA), in that he made a statement that Mr Ian Craig McDowell, a local government employee, was dishonest, is affirmed.
3.Within the period of 29 days to 43 days from the date of this order, the applicant must arrange for the following Notice of Public Apology to be published in no less than 10 point print:
(a)as a one-column or a two-column display advertisement in the first 15 pages of The West Australian newspaper; and
(b)as a one-column or a two-column display advertisement in the first 15 pages of the Eastern Suburbs Reporter newspaper.
NOTICE OF PUBLIC APOLOGY
Two separate complaints have been made to the Local Government Standards Panel (the Panel) about my conduct, as a member of the Town of Bassendean's Council at its meeting on 13 July 2010, during the debate regarding the officer report on safe traffic movement at the Morley Drive/Wicks Street intersection.
The Panel has considered the complaints, and made a finding of minor breach - namely, that during the said debate, when members of the public were present, I committed a breach of regulation 10(3)(a) of the Local Government (Rules of Conduct) Regulations 2007 in that I orally made an implied statement that Mr Ian Craig McDowell, a Town employee at the time and the author of the said officer report, was dishonest.
I apologise to Mr McDowell for my conduct, and regret any hurt, inconvenience or unpleasantness I have caused to him.
DONALD YATES
I certify that this and the preceding [28] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE D R PARRY, DEPUTY PRESIDENT
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