The Supreme Court of Western Australia recently confirmed that the State Administrative Tribunal (Tribunal) did not have the jurisdiction to find that a local government council member had committed a minor breach under the Local Government Act 1995 (LGA) that was different to the breach alleged in a complaint to the Local Government Standards Panel (Panel), in the case of RE v Local Government Standards Panel  WASC 51.
The Tribunal’s Decision
The appellant was a councillor of a metropolitan council (City). In 2012 the Mayor of the City made a complaint alleging that the appellant had breached regulation 7(1) of the Local Government (Rule of Conduct) Regulations 2007 (WA) (Regulations). The complaint was referred to the Panel.
Under regulation 7(1) (headed ‘Securing personal advantage or disadvantaging others’) a person who is a council member must not make improper use of the person’s office as a council member —
- to gain directly or indirectly an advantage for the person or any other person;
- to cause detriment to the local government or any other person.
The Panel found that the appellant had behaved in a disorderly or disruptive manner at a council meeting in 2011; that she had made improper use of her office as a councillor by her conduct; that she had caused detriment to the City and the Mayor; and that, consequently, she contravened regulation 7(1)(b) of the Regulations. The Panel directed that the appellant be publicly censured pursuant to section 5.110(6)(b) LGA.
The appellant applied to the Tribunal for a review of the Panel’s decision. The Tribunal found that the evidence did not establish that the appellant intended to cause detriment to the City or any other person by her conduct, and accordingly a breach of regulation 7 had not been established. The Panel had erred in finding that the appellant had contravened regulation 7(1)(b).
However, the Tribunal further held that:
- the Panel could have amended the complaint to deal with the appellants conduct as a breach of Standing Orders, and have found that she committed a minor breach for the purpose of section 5.105 and 5.110 LGA;
- the Tribunal could find that the appellant had committed a minor breach as the Tribunal ‘stood in the shoes’ of the Panel when exercising its review jurisdiction; and
- the appellant was guilty of a minor breach under regulation 4(2) for which she should be sanctioned, the appropriate sanction being an apology given publically at a council meeting.
Under regulation 4(2) of the Regulations the contravention of a local law as to conduct is a minor breach for the purposes of section 5.105(1)(b) of the LGA (a Local law as to conduct being defined to mean a local law relating to conduct of people at council or committee meetings).
The Tribunal relied upon the Bloomfield case
The Tribunal sought to rely inter alia on Bloomfield v Real Estate and Business Agents Supervisory Board of Western Australia (1995) 13 SR (WA) 138 (Bloomfield case). In that case Barlow DCJ held that once an inquiry into the conduct of an agent had been initiated, the Supervisory Board could investigate any matters that came to its attention that indicated the person, the subject of the inquiry, may not have acted consistently with the agent’s code of conduct, or the requirements of the Real Estate and Business Agents Act 1978 (WA) (REBA Act).
The Tribunal observed that the Panel was required under clause 8(6) of schedule 5.1 LGA to have regard to the general interest of local government in Western Australia. There was no reason in principle why the Panel could not have allowed either the complaint form to be amended to make a further or related complaint (on the same facts), or to have found in the alternative or cumulatively a contravention of a local law as to conduct.
The Tribunal was empowered by section 29 of the State Administrative Tribunal Act 2004 (WA) to do whatever might have been lawfully done by the Panel in determining the complaint.
It would have been open to the Panel (and it was accordingly open to the Tribunal) to ‘re-characterise’ the appellant’s conduct and the complaint for the purpose of determining whether she breached the LGA.
The Tribunal’s orders
The Tribunal made a number of orders, including that the Panel’s finding that the appellant committed a breach of regulation 7(1)(b) of the Regulations be set aside.
The Tribunal also ordered that in lieu of the Panel’s finding there is substituted a finding that the appellant committed a breach of regulation 4(2) of the Regulations by breaching the Standing Orders, and the appellant must make a public apology at an ordinary council meeting of the City.
The appellant appealed the Tribunal’s decision in the Supreme Court.
The Re decision in the Supreme Court
In the Re decision, Justice Corboy found in favour of the appellant, and held that the Panel (and Tribunal) did not have the power to ‘re-characterise’ the complaint or the appellant’s conduct and make a finding that a different minor breach occurred to that alleged in the complaint.
Justice Corboy examined Part 5 division 9 of the LGA concerning the conduct of councillors and other local government officers and employees.
Section 5.107 LGA permits a person who has reason to believe a council member has committed a minor breach to send a complaint to a complaints officer. Section 5.107(2) stipulates what information must be provided.
The complaints officer is obliged to deal with the complaint according to the provisions of section 107(3) LGA. Section 107(3)(c) enables the complaints officer to send the complaint, and anything relevant to the complaint, to the Panel. There is otherwise no express power conferred on the Panel to seek or receive evidence.
Section 5.110 LGA provides how the Panel is to deal with any complaint it receives. In particular, the Panel is required under section 5.110(2) to either make a finding as to whether the ‘breach alleged in the complaint occurred’ or send the complaint to the Departmental CEO.
The Panel is obliged to give notice of the reasons for any finding it makes under section 5.110(2) LGA. Section 5.110(6) empowers the Panel to dismiss the complaint or to make various orders in respect of the ‘person against whom the complaint was made’.
Justice Corboy held that the jurisdiction of the Panel is defined by reference to the ‘complaint’ that it receives, and that the Panel is required to make a finding about whether ‘the breach alleged in the complaint occurred’.
Accordingly, the Panel did not have the power to re-characterise the complaint or the appellant’s conduct so as to make a finding that a different minor breach occurred to that alleged in the complaint.
Justice Corboy distinguished the Bloomfield case, which concerned statutory schemes different to that under Part 5 division 9 of the LGA, and was not illustrative of the way the Panel could exercise the powers conferred under section 5.110 LGA. In the Bloomfield case the REBA Act allowed for the regulation and supervision of real estate and business agents through a supervisory board. The Panel had no such function or powers.
For more information on this update or any other local government matter please contact Philip Mavor on (08) 9321 3755.
The information published on this website is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.