(a) the applicant had committed a minor breach pursuant to the Local Government Act 1995 (WA) (the LG Act) and reg 20 of Div 4 of the _Local Government (Model Code of Conduct) Regulations 2021 (_WA) (the Model Code) in relation to the telephone conversation on 14 February 2024; and

(b) did not commit a minor breach pursuant to the LG Act and the Model Code in relation to the text message received by Mr Barrett.

1. The Panel's 10 June 2024 findings were set out in writing in the Panel's reasons for finding dated 8 August 2024 (the breach decision).
2. On 17 December 2024, the Panel decided to make an order that the applicant make a public apology to Mr Barrett in terms specified in the order (the sanction decision).
3. On 19 January 2025, the applicant applied to the Tribunal pursuant to s 5.125(1) of the LG Act for review of both the breach decision and the sanction decision.
4. The parties accept that the application is for review of both:

(a) the finding in the breach decision that the applicant had committed a minor breach in respect of the telephone conversation; and

1. The finding by the Panel in the breach decision that the applicant did not commit a minor breach in respect of the text message is not a matter before the Tribunal.
2. The Attorney General of Western Australia (the Intervenor) has intervened in the proceeding pursuant to s 37(1) of the State Administrative Tribunal Act 2004 (WA) (the SAT Act). Consistent with the usual approach in such proceedings, the respondent has taken no active role in the proceeding beyond providing the documents required to be lodged pursuant to s 24 of the SAT Act. In view of the respondent's limited role, the Intervenor acts as a contradictor in the proceeding.

1. The Intervenor's Statement of Issues, Facts and Contentions lodged on 5 June 2025[1] (the Intervenor's SIFAC) frames the issues before the Tribunal in this proceeding in terms to the following effect, which the applicant agrees are the relevant issues in his responsive Statement of Issues, Facts and Contentions lodged on 8 August 2025[2] (the applicant's SIFAC):

(i) whether the Applicant committed a minor breach, within the meaning of s 5.105 of the LG Act by contravening cl 20 of the Model Code; and

(ii) if so, what is the correct and preferable decision as to sanction to impose under s 5.110(6) of the LG Act.

(b) The first principal issue above is dependent upon the following five sub-issues:

(i) whether the applicant was a Councillor of the Shire at all material times;

(ii) whether the complainant, Mr Barrett, was a local government employee acting in his capacity as a local government employee at all material times;

(iii) whether the applicant, in the telephone conversation on 14 February 2025, made the comment alleged by Mr Barrett in the Complaint;

(iv) whether the applicant's conduct amounted to a threat; and

(v) whether the applicant subjectively intended to influence Mr Barrett in his capacity as a Shire employee.

1. The following witnesses gave evidence at the hearing:

1. For the purposes of the final hearing, the Tribunal had prepared a hearing book, which was marked as Exhibit A, comprising:

(a) the application form lodged by the applicant at the commencement of the proceedings and the attachments lodged with the application;[3]

(b) the Intervenor's SIFAC and the applicant's SIFAC;

(c) the respondent's bundle of documents lodged with the Tribunal in accordance with s 24 of the SAT Act;[4]

(d) the applicant's bundle of documents;[5] and

(e) the following witness statements lodged in the proceeding:

(i) signed statement of Mr Barrett dated 20 October 2025;[6]

(ii) signed statement of the Hon. Amanda Dorn MLC dated 20 October 2025;[7]

(iii) signed statement of Mr Ray O'Connor dated 21 October 2025;[8]

(iv) signed statement of Ms Marlene Smith titled as 'Witness Statement - Marlene Smith (Second Statement) 05 May 2024';[9]

(v) signed statement of Ms Kerry Butler dated 9 July 2025;[10]

(vi) undated signed statement of Mr Hayden Van Der Meulen;[11]

(vii) signed statement of Mr Jason Weeks dated 21 October 2025;[12]

(viii) signed statement of Councillor Frank Peczka dated 9 July 2025;[13] and

(ix) signed statement of the applicant dated 1 November 2025.[14]

1. Early in the hearing the Intervenor indicated to the Tribunal that it objected to the tendering by the applicant of witness statements in respect of the following persons who have signed witness statements that have been lodged in the proceeding, but who were not called to give evidence at the final hearing:

1. However, the Intervenor was content for the written statements to remain in evidence on the basis of the Tribunal's observations at the hearing that the statements include, on the face of it, very little evidence relevant to the matters in issue and it would consequently be a question of what if any weight ought to be attributed to them.

1. The review of the breach decision and the sanction decision are within the Tribunal's review jurisdiction.
2. In Kingston and Local Government Standards Panel [No 2] [2025] WASAT 91 (Kingston), being a review from a Panel decision regarding clause 18 of the Model Code, Senior Member Aitken outlined the relevant statutory provisions and Tribunal process as follows at [40] to [47]:
   1. Under s 29(1) of the SAT Act, when dealing with this matter the Tribunal has the functions and discretions corresponding to those exercisable by the Panel.
   2. Section 5.106 of the LG Act provides that a finding that a minor breach has occurred must be based on the evidence from which it may be concluded that it is more likely that the breach occurred than that it did not occur.
   3. Section 5.105(1) of the LG Act provides that a council member commits a minor breach if they contravene a rule of conduct.
   4. Section 5.102A of the LG Act provides that a rule of conduct is a provision in the Model Code that is specified in the Model Code to be a rule of conduct.
   5. Clause 18 of the Model Code is specified to be a rule of conduct.
   6. Therefore, if I conclude on the evidence that it is more likely than not that Cr Kingston breached cl 18 of the Model Code I must find that he committed a minor breach.
   7. Section 27 of the SAT Act provides that:

(1) The review of the Decision is to be by way of a hearing de novo (that is, from the beginning: anew).

(2) The review is not confined to matters that were before the Panel and may involve the consideration of new material.

(3) The purpose of the review is to produce the correct and preferable decision.

(4) The review is not limited to the reasons given by the Panel for the Decision or the grounds for review set out in the application for review.

1. Section 29(3) of the SAT Act provides that the Tribunal may affirm or vary the Decision or set the Decision aside and substitute its own decision or send the matter back to the Panel for reconsideration.
2. I adopt the approach of the Tribunal as set out in Kingston, noting that clause 20 of the Model Code, being the clause the subject of the Complaint, is also specified to be a rule of conduct.
3. For the purposes of this matter, clause 20 states relevantly:
   1. Relationship with local government employee

(a) employed by a local government under section 5.36(1) of the Act; or

(b) engaged by a local government under a contract for services.

(a) direct or attempt to direct a local government employee to do or not to do anything in their capacity as a local government employee; or

(b) attempt to influence, by means of a threat or the promise of a reward, the conduct of a local government employee in their capacity as a local government employee; or

(c) act in an abusive or threatening manner towards a local government employee.

1. As set out above, the part of the Complaint that was found by the Panel to constitute a minor breach was in respect of the phone call between the applicant and Mr Barrett on 14 February 2024.
2. For context, the phone call took place in circumstances where the applicant, in his capacity as a co-owner and director of a wildlife sanctuary had arranged for a 'Blackwalk' to take place in areas affected by recent bushfires, for the purpose of finding and assisting injured wildlife.
3. The Complaint described the alleged breach as follows (including typographical errors in the original):[15]

At 10.30am on Wednesday 14th February i received at phone call from councillor Stewart enquiring about the implementing of a Total Fire Ban and Harvest & Vehicle Movement Bans for the weekend of the 17th -18th Feb as his groups wished to carry out a "Blackwalk"

I informed him he would not be able to carry out the event due to this being an active fireground not being safe. I also advised him to read the email sent to him the previous afternoon as the explanation as to why.

Cr Stewart questioned my authority and proceeded to attempt to manipulate me into agreeing to let the walk continue. He stated that they had "trained forty people in the past 2 weeks, he had Roger Cook on his side and would notify channel 9 if it didnt go ahead". At this point I again suggested he read the email and ended the call. Within moments he attempted to call me back, a call I did not accept and this was witnessed by several people.

At 11.38am I received a text message from Cr Stewart that not only demonstrated clear intent, but was also threatening and defamatory in nature. The text is attached below.

It is my duty to ensure the community and its residents are safe from, during and after a fire and other Emergencies and I feel I was unfairly threatened while carrying out those duties.

1. The wording of the text message received by Mr Barrett later on 14 February 2024 was then set out in the Complaint in a subsequent box on the form.[16]
2. During the hearing, an issue arose as to whether, and if so when, the full content of the Complaint had been communicated to the applicant. This was because the applicant's evidence was that the Complaint, when received by him, was in the form of a PDF which, when viewed on his devices showed only the following text in the box for the description of the Complaint (again including typographical errors in the original):[17]

At 10.30am on Wednesday 14th February i received at phone call from councillor Stewart enquiring about the implementing of a Total Fire Ban and Harvest & Vehicle Movement Bans for the weekend of the 17th -18th Feb as his groups wished to carry out a "Blackwalk"

I informed him he would not be able to carry out the event due to this being an active fireground not being safe. I also advised him to read the email sent to him the previous afternoon as the explanation as to why.

Cr Stewart questioned my authority and proceeded to attempt to manipulate me into agreeing to

1. Indeed, when one looks at the Complaint as it appears in Exhibit A, the above text is all that can be seen initially. However, in both the electronic copy of Exhibit A, and the electronic copy of the Section 24 bundle lodged by the respondent, it is possible, at least on some electronic devices, to highlight the text in the box and then scroll down in order to see the balance of the text that had been included in that part of the Complaint.
2. Notwithstanding that I could view the additional text, as I did so during the hearing, I accept the applicant's evidence that he was unable to view on his electronic devices the balance of the text in that part of the Complaint.
3. However, the effect of the applicant's evidence in this regard is also that he:

(a) received a complaint that, in respect of the description of the relevant conduct, appeared to finish partway through a critical sentence; but

(b) did not seek to make enquiries of the Panel as to whether any part of the complaint was missing.

1. It would be inadvisable for the relevant department to continue to use, for the purposes of complaints against Local Government Councillors, an electronic form that permits a person to input far more text than can be seen when the document is viewed at first glance on a computer screen. It ought not to be a requirement for the recipient of a complaint to have to investigate how the additional text may be able to be viewed on an electronic device. The difficulties in this regard are exacerbated if, as is the case in this matter, printing the document also results in only a portion of the included text being visible in the printed copy or, as the applicant contends and I accept, certain electronic devices do not allow the additional text to be revealed in any event.
2. Notwithstanding the problematic use of an electronic complaint form, I am satisfied and find that, at the latest, the applicant had been provided by about 8 August 2024 with a sufficiently clear version of the substance of Complaint, so as to enable him to properly pursue this application for review.
3. This is because the breach decision delivered by the Panel on 8 August 2024 in respect of the Panel's finding at its meeting on 10 June 2024, that the applicant had committed a minor breach, includes the following under the heading 'The Specifics of the Complaint':[18]

The Complainant provided the following comments and arguments in respect to the Complaint as summarised by the Panel:

1. At 10.30am on Wednesday 14 February 2024 the Complainant received a phone call from Cr Stewart enquiring about the implementing of a Total Fire Ban and Harvest & Vehicle Movement Bans for the weekend of the 17th -18th Feb as his group wished to carry out a "Blackwalk".
2. The Complainant informed Cr Stewart that he would not be able to carry out the event due to this being an active fireground not being safe. The Complainant also advised him to read the email sent the previous afternoon as the explanation as to why.

1. Cr Stewart questioned the Complainant's authority and proceeded to attempt to manipulate him into agreeing to let the walk continue.

1. Cr Stewart stated that they had "trained forty people in the past 2 weeks, he had Roger Cook on his side and would notify channel 9 if it didn't go ahead".
2. At this point the Complainant again suggested he read the email and ended the call.
3. Within moments Cr Stewart attempted to call the Complainant back, a call he did not accept. This was witnessed by several people.
4. At 11.38am the Complainant received a text message from Cr Stewart that not only demonstrated clear intent but was also threatening and defamatory in nature.
5. It is the Complainant's duty to ensure the community and its residents are safe from, during and after a fire and other Emergencies and the Complainant feels he was unfairly threatened while carrying out those duties.

1. Both the Panel's written breach decision of 8 August 2024 and its 17 December 2024 sanction decision were lodged by the applicant with his application to the Tribunal on 19 January 2025.
2. The nature of the Complaint and the issues to be determined by the Tribunal in respect of the Complaint were then set out in detail in the Intervenor's SIFAC lodged on 5 June 2025. In turn, the applicant's SIFAC lodged on 8 August 2025:

(a) responds in significant detail to the Intervenor's SIFAC; and

(b) in particular responds to the detailed elements of the Complaint as described in the Intervenor's SIFAC; but

(c) does not raise any issue in respect of the inability of the applicant, on his electronic devices, to view the entire description of the Complaint in the electronic form.

1. In the course of dealing with this point early in the hearing, the applicant accepted that he did get the specifics of the Complaint in the breach decision. However, to the extent those specifics included additional matters beyond what he was able to see in the Complaint form itself, the applicant assumed these additional matters had arisen from further material that Mr Barrett had provided to the Panel in the course of its process.
2. Practically, the issue raised by the applicant appeared to be directed at the lack of disclosure to him by the Panel of the full text of the Complaint being procedurally unfair, including this being the reason why the witness statements lodged by the applicant in the course of that process did not address the full details of the Complaint and, in particular, the detail of what Mr Barrett contended the applicant said to him during the telephone conversation on 14 February 2024.
3. Throughout the hearing, the applicant maintained his position that this apparent failure by the Panel to provide to him the Complaint, in a format that he was able to see the full wording, was such a significant breach of procedural fairness that the Tribunal ought to set aside the both the breach decision and the sanction decision. Indeed, this submission constituted a significant portion of the applicant's closing submissions at the hearing.
4. This application is not an appeal from the Panel's decision and instead proceeds, by way of review, as a de novo hearing. It is not required to show some error on the part of the Panel and it is instead for the parties to put before the Tribunal all relevant evidence upon which they seek to rely and for the Tribunal to then make the correct and preferable decision.
5. I am satisfied and find, by reason of the details of the Complaint set out in both the Panel's decision of 8 August 2024 and the Intervenor's SIFAC, that the applicant has been provided with sufficient disclosure of the Complaint to be able to properly pursue his application for review before the Tribunal.
6. It is also noted that the first occasion on which the applicant raised an issue regarding his inability to see the entire text of the Complaint, at least as it appeared in the original Complaint form, was at the final hearing. This occurred in circumstances where:

(a) as set out above, it appears obvious from the Complaint that the text in the relevant box finishes part-way through a critical sentence, yet the applicant did not seek to make any enquiries with the Panel as to whether any part of the Complaint was missing;

(b) the applicant, from about 8 August 2024, had been provided with the full details of the Complaint in the breach decision, with the relevant parts of the Complaint in respect of the 14 February 2024 telephone call, as detailed in that decision, having no material difference to the text that the applicant says he was unable to see in the original Complaint form; and

(c) the applicant assuming, without making any enquiries prior to the final hearing to ascertain if his assumption was correct, that what he considered to be additional details of the Complaint as set out in the breach decision arose from some further material that Mr Barrett submitted during the course of the Panel's process.

1. As set out above, the applicant and Intervenor agree that the question of whether the applicant committed a minor breach is dependent upon the following five sub-issues:

(a) whether the applicant was a Councillor of the Shire at all material times;

(b) whether Mr Barrett, was a local government employee acting in his capacity as a local government employee at all material times;

(c) whether the applicant, in the telephone conversation on 14 February 2024, made the comment alleged by Mr Barrett in the Complaint;

(d) whether the applicant's conduct amounted to a threat; and

(e) whether the applicant subjectively intended to influence Mr Barrett in his capacity as a Shire employee.

1. There is no dispute between the applicant and the Intervenor, and I find, that at all material times in respect of the telephone conversation the subject of the Complaint, the applicant was a Councillor of the Shire.
2. There is also no dispute between the applicant and the Intervenor, and I find, that at all material times in respect of the telephone conversation the subject of the Complaint, Mr Barrett was employed by the Shire. In the Intervenor's SIFAC, Mr Barrett's role with the Shire, at the material time, is stated to be Chief Officer for Volunteer Bushfire Brigade and Chief Executive Services Manager. However, in his signed witness statement dated 20 October 2025, Mr Barrett states that, between 16 September 2016 and 2 July 2024, he was employed by the Shire as Community Emergency Service Manager and Chief Bushfire Control Officer. I am satisfied and find that the positions referred to in Mr Barrett's statement are those that he held at the time of the conversation the subject of the Complaint. In any event, his position as an employee of the Shire, however described, at the material time is not disputed.
3. Likewise, it is not in dispute that the telephone call the subject of the complaint occurred in circumstances where Mr Barrett was an employee of the Shire acting in his capacity as an employee.[19] That the telephone call related to matters involving Mr Barrett in his capacity as an employee was also clear from the evidence at the hearing.
4. What was in dispute at the hearing was:

(a) whether, in the telephone conversation between them on 14 February 2025, the applicant made the comments alleged by Mr Barrett in the Complaint; and

(i) the applicant's conduct amounted to a threat; and

(ii) the applicant subjectively intended to influence Mr Barrett in his capacity as a Shire employee.

1. As addressed above, the Complaint completed by Mr Barrett stated, relevantly, as follows in relation to the telephone conversation:[20]

Cr Stewart questioned my authority and proceeded to attempt to manipulate me into agreeing to let the walk continue. He stated that they had "trained forty people in the past 2 weeks, he had Roger Cook on his side and would notify channel 9 if it didnt go ahead".

1. In the Panel's breach decision, this same part of the conversation is addressed, in terms that the Tribunal considers to be of no material difference to the Complaint form, as follows:[21]

1. Cr Stewart questioned the Complainant's authority and proceeded to attempt to manipulate him into agreeing to let the walk continue.

1. Cr Stewart stated that they had "trained forty people in the past 2 weeks, he had Roger Cook on his side and would notify channel 9 if it didn't go ahead".

Evidence before the Tribunal relevant to the Complaint

1. In his signed witness statement, Mr Barrett addresses the initial part of the discussion during the 14 February 2024 telephone call. In respect of the part of the call the subject of the Complaint, he states at para 31:

Having refreshed my memory from the Complaint, I recall Mr Stewart stating that he had 'trained forty people in the past 2 weeks, he had Roger Cook on his side and would notify channel 9 if it didn't go ahead.

1. Mr Barrett's evidence at the hearing was to the effect that:

(a) he personally inserted the information included in the first three pages of the Complaint, being those pages at pages 25 to 27 (inclusive) of Exhibit A;

(b) the date of 29 February 2024 that appears in the Complaint is the dated that he finished filling out the Complaint;

(c) following the conversation with Mr Stewart on 14 February 2024, it took several days to get a copy of the relevant form, after he had made an initial verbal complaint to the CEO of the Shire;

(d) following receipt of the form, he proceeded to fill it out as soon as possible, and finished doing so on 29 February 2024; and

(e) in the course of completing the Complaint, he had the benefit of handwritten notes of the conversation, but he no longer had access to those notes as he did not retain them when he completed his employment with the Shire in July 2024.

1. In cross-examination of Mr Barrett by the applicant:

(a) a significant focus of the questions of Mr Barrett was whether he was authorised to make decisions as to who could access various of the bushfire affected areas and access roads;

(b) the applicant sought to question Mr Barrett as to whether the decision to not grant approval for the Blackwalk was discriminatory against the applicant and/or the wildlife sanctuary;

(c) the applicant suggested that the only people who Mr Barrett sought to deny access to was the applicant and his group, which was clearly denied by Mr Barrett; and

(d) the applicant sought to question Mr Barrett as to a variety of previous decisions and interactions between them.

1. Despite the applicant's extensive focus upon questions of whether Mr Barrett was authorised to make relevant decisions about access to bushfire affected areas, or whether those decisions were made correctly, these matters are not considered by the Tribunal to be relevant to the issues to be determined in this proceeding. The proceeding does not concern the appropriateness or otherwise of anything done by Mr Barrett. However, the extensive cross-examination on these topics was indicative of a fraught history between the applicant and Mr Barrett and the applicant's strident views, still maintained more than 18 months after the incident in question, that Mr Barrett was acting beyond his authority and/or in a manner that was discriminatory. In addition to these matters being irrelevant to the issues in this proceeding, there was in any event no cogent evidence before the Tribunal, beyond the applicant's strongly held opinions, to support any claim regarding the appropriateness or otherwise of any decisions made by Mr Barrett.
2. Relevant to the part of the call the subject of the Complaint, the applicant:

(a) asked whether Mr Barrett was speaking loudly and rudely, which Mr Barrett denied; and

(b) asked whether the applicant had said to Mr Barrett that the applicant had Roger Cook on his side and had notified Channel 9 about the Blackwalk, which Mr Barrett confirmed did occur.

1. At no time did the applicant put to Mr Barrett that critical parts of the conversation as recounted by Mr Barrett in the Complaint did not actually occur, notwithstanding that is clearly the applicant's contention.
2. The applicant's witness statement filed in this proceeding also includes a suggestion to the effect that Mr Barrett's recollection of what was said in the telephone call on 14 February 2024 may have been confused by or conflated with other matters such as the wildlife sanctuary's social media posts or subsequent email correspondence from the applicant.[22] However, the applicant did not put this possibility of confusion to Mr Barrett in cross-examination.
3. In re-examination, Mr Barrett gave evidence that he became a bushfire volunteer in 1991, was appointed a fire control officer in 2007, then deputy chief fire control officer in 2012 and was appointed to the Chief Bushfire Brigade Officer role in 2016, which he then held for around eight years.
4. In respect of Mr Van Der Meulen, his evidence was that the witness statement lodged in this proceeding was essentially the same email that he sent to the Panel for the purposes of their process, save for the addition of headings and some minor tidying up of the wording. His evidence was also that, at the time he prepared both the statement sent to the Panel, and the amended version prepared for this proceeding, he had understood that the Complaint was only about the text message and not the telephone call on 14 February 2024.
5. Mr Van Der Meulen gave evidence during cross-examination to the following effect:

(a) he ran the wildlife sanctuary with the applicant and was supportive of the Blackwalk going ahead;

(b) when the telephone call took place on 14 February 2024, Mr Van Der Meulen was within about one metre of the applicant and the call took place on speakerphone;

(c) while he can't recall an exact number being said, the applicant said in the call that he had trained volunteers for the Blackwalk;

(d) he agreed it had been said that the training had occurred in the last two weeks, with Mr Van Der Meulen adding that it had been a very rapid turnaround;

(e) during the call, the applicant had said that he had engaged with members of parliament, however Mr Van Der Meulen was unsure whether the applicant had also said that the Premier was aware of the Blackwalk;

(f) Mr Van Der Meulen was unsure whether the applicant had said during the call that the Premier was on side;

(g) the applicant had said during the call that he'd been speaking to the media and he mentioned Channel 9 and that he would be speaking to Channel 9;

(h) however, Mr Van Der Meulen denied that the applicant had said he would be speaking to Channel 9 about Mr Barrett;

(i) as to whether the applicant said during the call that he would be notifying Channel 9 if the Blackwalk did not proceed, Mr Van Der Meulen did not recall that being said; and

(j) while he accepted that what one person might consider a threat another person may not, his evidence was that the applicant did not threaten Mr Barrett during the call.

1. In re-examination by the applicant, Mr Van Der Meulen was asked whether the comment made during the telephone call about the media was made in a threatening manner. In response, Mr Van Der Meulen said that threatening can mean different things to different people, but that the applicant was very calm during the call.
2. In relation to the evidence of Ms Smith, her witness statement describes the nature and some parts of the telephone call on 14 February 2024, which she says she was able to hear as she was also present while the call took place with the applicant's phone on speaker. While the statement also records that at no time did the applicant behave in a bullying, threatening or inappropriate manner, it does not specifically address the words alleged to have been said that were pertinent to the finding of a minor breach in the breach decision.
3. In cross-examination, Ms Smith's evidence as to the pertinent parts of the telephone call on 14 February 2024 was to the following effect:

(a) the call took place with the applicant's phone on speaker and with Ms Smith being one of six or so people that were present and able to hear;

(b) during the call, the applicant said that he had trained volunteers for the Blackwalk, but she did not hear any reference to the number forty;

(c) she did not hear the applicant say that the volunteers had been trained in the last two weeks, but he did say that he had trained some volunteers and they were coming to help on the Blackwalk;

(d) while not 100% sure, she thinks the applicant said on the call that he had engaged with members of parliament;

(e) she did not hear the applicant say anything about the Premier or the Premier being 'on side';

(f) the applicant said there was media interest in the Blackwalk, by which she says the applicant meant that a documentary series was going to be filmed about it; and

(g) she did not hear the applicant say that he had been speaking to the media or refer to Channel 9, and she denied that the applicant said that he would notify Channel 9 if the Blackwalk did not go ahead.

1. In relation to her email to the Panel dated 29 March 2024, Ms Smith's evidence was that, at the time she sent that email, she understood the Complaint to only relate to the text message that had been sent after the telephone call, and not to the call itself.
2. As to the text message, Ms Smith's evidence was to the effect that she personally sent that text message after the applicant had left the table.
3. When asked about the evidence in her witness statement that she sent the text based on what she had witnessed during the call, Ms Smith's evidence in cross-examination was to the effect that the applicant did not say in the call that he would go to the media, nor did he mention Channel 9.
4. Turning to the applicant's witness statement filed in the Tribunal, while this addresses aspects of the subject telephone call, and various grievances as to the Complaint having been made against him, it does not directly address the words alleged in the Complaint to have been said by the applicant during the 14 February 2024 telephone call. While, as noted above, the applicant maintained his position that a full copy of the Complaint had never been provided to him, the alleged statements that led to the minor breach finding were clearly disclosed to the applicant from about 8 August 2024 in the breach decision.
5. In respect of the applicant's position at the hearing, and perhaps unsurprisingly as a self-represented party, there was some blurring between evidence and matters of submission. In effect, his evidence in chief comprised the evidence set out in his witness statement and the evidence at the hearing to the effect that:

(a) during the 14 February 2024 telephone call, he conducted himself appropriately and this is confirmed by witnesses to that call;

(b) while he accepts that Mr Van Der Meulen gave evidence that the applicant said something in the call about Channel 9, the applicant denies he mentioned Channel 9 in the call and had no discussions with that media network;

(c) it was Mr Barrett who was loud and hostile in the call; and

(d) in relation to the specific words that he is alleged to have said, which led to the Panel's breach decision, those words have never appeared in any copy of the Complaint provided to him. While the relevant section of the Complaint finishes mid-sentence, the applicant had assumed this was due to some character limit in that section and it had not occurred to him to check with the Panel whether something was missing from the Complaint.

1. In cross-examination, the applicant's evidence was to the effect that:

(a) he is co-owner and a director of the animal sanctuary that was arranging the Blackwalk, with Mr Van Der Meulen being the other co-owner and director;

(b) when he comes up against someone who is stopping him from seeking to save animals, he does not give up and does not bow to pressure;

(c) at the time of the 14 February 2024 call, a lot had been done to arrange the Blackwalk and this included the applicant having spoken to members of parliament;

(d) while the applicant's SIFAC appears to refer to the applicant stating during the 14 February 2024 call that 'Roger Cook was aware of Black Walk' the applicant's evidence was that he did not state that during the telephone call, but he had been told by others that the Premier was aware of the Blackwalk;

(e) during the call, the applicant questioned Mr Barrett's authority, noting that Mr Barrett was trying to stop the applicant from accessing areas that had been opened to the public;

(f) while Mr Barrett was the person at the Shire responsible for bushfire control, the applicant was not phoning him on 14 February 2024 to ask for permission to conduct the Blackwalk as the applicant did not believe Mr Barrett was authorised to stop the Blackwalk going ahead;

(g) the reason for the call was to ask whether Mr Barrett would provide a fire tanker to support the Blackwalk and, at the time of the call, the applicant had not seen the letter dated 13 February 2024 from Mr Barrett to the applicant in which Mr Barrett advised that he was not authorising the Blackwalk to proceed;

(h) the applicant said during the call that a lot of people had been trained for the purposes of the Blackwalk, but did not mention the number forty and did not say that the applicant had trained them as he does not personally provide the training;

(i) the applicant was not hoping to convince Mr Barrett in the call to permit the Blackwalk to proceed as he did not care about Mr Barrett's authority;

(j) he '100% did not refer to the Premier in the phone call at all' and did not say that the Premier was on the applicant's side;

(k) he did say in the call something to the effect that a documentary crew had been arranged to film the Blackwalk, but he did not mention Channel 9 and he has never had any dealing with Channel 9; and

(l) while he was trying to explain during the call that Mr Barrett was incorrect in respect of his position regarding the Blackwalk, the applicant was not trying to convince him because the applicant did not consider that his wildlife sanctuary team needed Mr Barrett's permission.

1. I do not consider that the witness statements lodged by the applicant for those witnesses that did not attend to give evidence at the final hearing assist in determining the matters in issue and they are given no weight in the reasons that follow. Those statements do not address the substance of the telephone call in any way that assists in determining whether the applicant said the words alleged in the Complaint. To the extent various of the statements include unnecessary and irrelevant information as to previous grievances with one or more employees of the Shire, they do nothing more than to add to the problematic history between the applicant and Mr Barrett that was already apparent from the evidence of those witnesses that did attend the hearing.
2. Based upon the documentary evidence in Exhibit A and the witness evidence at the hearing, I am satisfied it is more likely than not, and I find, that the applicant, in the course of the conversation with Mr Barrett on 14 February 2024 said words to the effect that the wildlife sanctuary had 'trained forty people in the past 2 weeks, he [the applicant] had Roger Cook on his side and would notify channel 9 if it [the Blackwalk] didn't go ahead'.
3. The words alleged to have been said by the applicant were recorded by Mr Barrett in the Complaint form, which he completed on 29 February 2024. While the applicant questioned Mr Barrett as to the delay in completing the form, I accept his evidence that he completed the written Complaint form as soon as practicable after it had been received by him and did so with the benefit of contemporaneous notes. Mr Barrett did not waver in his evidence that these were the words said, nor was this challenged by the applicant in his extensive cross-examination of Mr Barrett.
4. Throughout his evidence at the hearing, Mr Barrett was clear, concise and balanced, including in answer to the extensive questions from the applicant which appeared to be directed at challenging Mr Barrett's authority and decisions in relation to access to bushfire affected areas.
5. In respect of those witnesses called by the applicant to give evidence at the hearing, including himself, each has lodged statements in the course of both the Panel's process and the Tribunal proceedings that include significant adverse comments in relation to Mr Barrett. Particularly from the statements of the applicant and Mr Van Der Meulen, it is clear that there has been previous issues, and longstanding animosity, between the applicant and Mr Barrett.
6. The statements of the applicant, Mr Van Der Meulen and a number of the persons who had signed statements, but not been required to attend the final hearing, also ventilate significant grievances and allegations against other senior staff of the Shire. These grievances and allegations have no relevance to the issues for determination by the Tribunal.
7. However, the focus on prior grievances and allegations is indicative of a shared dislike of Mr Barrett and a common view that he was making decisions that were incorrect, unauthorised and discriminatory against the applicant and his wildlife sanctuary. In my view, this adversely impacts upon the credibility of the evidence relied upon by the applicant as to the conversation on 14 February 2024.
8. The evidence of the applicant, Ms Smith and Mr Van Der Meulen was all consistent that there were a number of people, other than them, who were also present when the 14 February 2024 conversation was taking place on speakerphone. However, none of those other witnesses lodged statements in the Tribunal proceeding in relation to the telephone call and specifically the words alleged in the Complaint to have been said by the applicant.
9. In relation to the evidence of Ms Smith, she acknowledged at the hearing that she has some memory issues. In respect of a number of her answers in cross-examination regarding whether certain things were said by the applicant, her evidence was that she did not hear those things being said, rather than those things certainly not having been said.
10. Mr Van Der Meulen's evidence included confirmation of the applicant having made references to volunteers being trained for the Blackwalk, the applicant having engaged with members of parliament and that the applicant would be speaking to the media and, specifically, to Channel 9.
11. Relevant to the context of the call on 14 February 2024, the applicant's evidence included that a great deal had been done to arrange the Blackwalk and that members of parliament had been engaged. While the applicant in cross-examination said that he '100% did not refer to the Premier in the phone call at all', this is contradicted by the applicant's SIFAC. In that document, which responds to the Intervenor's SIFAC in great detail, the applicant states:[23]

The Applicant did not say the Premier was "on his side"; he accurately stated that "Roger Cook was aware of the Black Walk," which was already publicly known through MP engagement in the animal welfare caucus;

1. In my view, the combined effect of the evidence of the applicant, Ms Smith and Mr Van Der Meulen, on balance, is that it is generally supportive of the words, as alleged by Mr Barrett, having been said during the phone call on 14 February 2024. The evidence from those witnesses called by the applicant certainly does not, in my view, support any finding that it is more likely than not that those words, or words to the same effect and with no material difference, were not said by the applicant. I arrive at this view with regard also to:
   • (a) the inconsistencies between the evidence of the applicant, Mr Van Der Meulen and Ms Smith as to whether certain things were or not said during the conversation on 14 February 2024;
   • (b) the close relationships between the applicant and each of Ms Smith and Mr Van Der Meulen;
   • (c) there being no evidence called from the other apparent witnesses to the telephone call on 14 February 2024 as to whether or not the applicant made the comments the subject of the Complaint; and
   • (d) the previous history between the applicant and Mr Barrett and the adverse views of Mr Barrett already held by both Ms Smith and Mr Van Der Meulen as addressed in their witness statements.
2. The next issue for consideration is then whether, by saying those words:

(a) the applicant's conduct amounted to a threat; and

(b) the applicant subjectively intended to influence Mr Barrett in his capacity as a Shire employee.

1. At the end of his signed statement lodged with the Tribunal, Mr Van Der Meulen stated that:[24]

Finally, please note that aside from Lincoln, none of us are bound by the Local Government Act or the elected member Code of Conduct.

1. However, it is precisely by reason of the provisions of the LG Act and the Model Code that local government Councillors must be particularly careful in their dealings with local government employees.
2. This matter involves a telephone call between the applicant, while he was both a Councillor of the Shire and the co-owner and a director of his wildlife sanctuary, and a senior employee of the same Shire.
3. The wording of clause 20 of the Model Code requires, for the purposes of the subject action to constitute a breach, that the local government employee involved in the circumstances is not just an employee but is acting in their capacity as an employee. The same is not required in respect of the Councillor. That is, a breach by a Councillor occurs as a result of the Councillor engaging in prohibited conduct, irrespective of whether it occurs in the course of their work as a Councillor or otherwise.
4. Particularly in light of the past history between the applicant and Mr Barrett, and also the past history referred to by Mr Van Der Meulen and others who provided statements in support of the applicant, the making of the telephone call on 14 February 2024 came with an obvious risk in circumstances where the applicant was a Councillor speaking to an employee of the Shire in that person's capacity as an employee.
5. While the Tribunal appreciates the admirable work of the wildlife sanctuary of which the applicant is a director and co-owner, that role and the pursuance of that work should be carefully managed to avoid the applicant's conduct as a Councillor being called into question by reason of his direct engagement with a senior employee of the Shire.
6. In the course of his evidence, the applicant explained that the mobile phone number, from which both the telephone call and the text message the subject of the Complaint originated, was the phone number for the applicant's animal sanctuary and was routinely used by other people at the animal sanctuary. Likewise, Mr Van Der Meulen states in his witness statement:[25]

The phone number used to send the text message in question belongs to our wildlife business phone, which is used daily by various staff members.

1. As also explained by Mr Van Der Meulen, the relevant mobile number appears in an online post as the contact number for the animal sanctuary[26] and the same phone number is set out on the side of a vehicle used by the sanctuary as the contact number for 'Wildlife Rescue Response Unit'.[27]
2. However, in email correspondence from the applicant's Shire Councillor email address, the same mobile phone number is provided as the applicant's direct phone number.[28] That a phone number recorded as being the applicant's direct contact number as a Councillor would be also used by a mobile phone freely available to others at the wildlife sanctuary is an unfortunate blurring of the applicant's responsibilities. It clearly also exposed the applicant to significant risks, such as that arising from the sending of the patently threatening text message referred to in the Complaint.
3. The telephone call on 14 February 2024 also took place in circumstances where the applicant, in his role with the wildlife sanctuary, had a very strong desire for the Blackwalk to proceed in order to locate and rescue injured wildlife and where he, and others, had put significant time and effort to arranging the event. The call also occurred when, as was clear from the applicant's evidence, he did not believe he required approval from Mr Barrett for the Blackwalk, did not believe Mr Barrett was authorised to make any such decision in any event and the applicant had significant other prior grievances with Mr Barrett. The prospects of that call going poorly ought to have been obvious.
4. However, in respect of the words actually used by the applicant in the 14 February 2024 telephone call with Mr Barrett, I am not satisfied that:

(b) by saying those words, the applicant subjectively intended to influence Mr Barrett in his capacity as a Shire employee.

1. In Mummery and Local Government Standards Panel [2020] WASAT 158 (Mummery) the Tribunal, consistent with the principles in Divine v The State of Western Australia [2019] WASCA 49 (Divine), applied the ordinary and natural meaning of the word 'threat' in considering whether conduct of a Councillor constituted a threat in breach of the applicable conduct rules in that matter.
2. To that end, the Tribunal in Mummery relied upon the following definition of 'threat' in the Macquarie Dictionary Online (2020):[29]
   1. a declaration of an intention or determination to inflict punishment, pain or loss on someone in retaliation for, or conditionally upon, some action or course; menace[.]
3. As noted above, the text message sent shortly after the telephone call on 14 February 2024 did not result in a finding of minor breach as the Panel accepted, on the evidence before it, that the text message was not sent by the applicant. However, that text message was clearly threatening, noting that it stated in effect, that Mr Barrett's emails would be published in the media and his face would be publicised.
4. In this proceeding, the sending of the text message is not the subject of the application for review and the clear evidence is that it was sent by Ms Smith, rather than the applicant. As a result, the words said by the applicant in the telephone call on 14 February 2024 are to be considered without reference to the subsequent text message.
5. Starting with the words in relation to there having been trained a significant number of volunteers for the Blackwalk, those words reflect the true position at the time. In my view, there is nothing in the saying of those words that constitutes a threat, either on their own or together with the balance of the words said.
6. In respect of the reference to the Premier being 'on side', the evidence supports the position that the applicant understood from others, including other members of parliament, that this was the case. Again, I am not satisfied that the saying of those words constitutes a threat, either on their own or together with the balance of the words said.
7. As to the last part of the words regarding Channel 9 being notified if the Blackwalk did not go ahead, there is no suggestion in the evidence before the Tribunal that the applicant threatened to name Mr Barrett in any such notification to the media. While the subsequent text message sent by Ms Smith did threaten to do precisely that, the text message cannot be relied upon to extend the normal meaning of the words that were actually said during the telephone call.
8. Where the evidence makes clear that there was a level of media interest in the Blackwalk, it might be unsurprising to say that the media would be advised if the Blackwalk was not in fact proceeding. In the way the words in this regard were said by the applicant, I am not satisfied that they constituted a threat.
9. In particular, there is not alleged to have been any statement by the applicant during the telephone call to the effect that he would give Mr Barrett's name to the media and/or tell the media that the Blackwalk was not proceeding because of a decision made by Mr Barrett.
10. In addition to finding that the words said by the applicant did not amount to a threat, I am also not satisfied that, by saying the relevant words during the 14 February 2024 telephone call, it is more likely than not that the applicant subjectively intended to influence Mr Barrett in his capacity as a Shire employee.
11. Applying Divine as the Tribunal did in Mummery,[30] a subjective test is to be used in determining whether a person intends to influence another.
12. The applicant's evidence was that he telephoned Mr Barrett on 14 February 2024 for the purpose of inquiring as to whether Mr Barrett would authorise the use of a fire tanker to support the Blackwalk. The applicant's evidence was that, at the time of the call, he had not read the letter from Mr Barrett dated 13 February 2024[31] in which Mr Barrett advised that he was not authorising any member of the public to enter the bushfire area.
13. The applicant's evidence was also that he did not believe that Mr Barrett had any authority to prevent the Blackwalk from proceeding and that, to the extent Mr Barrett intended to do so, it was an incorrect decision in addition to being made without proper authority.
14. The evidence before the Tribunal, and the extensive cross-examination of Mr Barrett by the applicant, demonstrates that the applicant was strident in his view that Mr Barrett was not authorised to stop the Blackwalk from proceeding and any such decision to do so was incorrect and discriminatory. To the extent the telephone call then addressed such a decision by Mr Barrett the evidence, on balance, is that it involved discussion as to why the applicant disagreed with Mr Barrett's authority to make any decision to prevent the Blackwalk proceeding and his reasons for doing so. However, I am not satisfied that this constituted a subjective attempt by the applicant to influence Mr Barrett through the making of any threat, as opposed to a significant disagreement between the two about what should or should not happen.
15. The effect of the applicant's evidence was that any purported decision by Mr Barrett was simply an obstacle that the applicant would then seek to confront, including by way of his subsequent email to Mr Barrett, sent via the CEO in accordance with the usual processes.[32] While this email itself included further indications of a potential clash between the applicant's wildlife sanctuary and Councillor roles, and the consequential risk of inappropriate engagement with and in respect of Shire employees, it does not demonstrate any subjective intention to influence Mr Barrett by way of a threat.
16. By reason of the matters set out above, I am satisfied and find that, while the applicant in the course of the 14 February 2024 telephone call said the words as alleged in the Complaint, or words with no material difference, the applicant's actions in this regard did not constitute conduct in breach of clause 20 of the Model Rules.
17. It follows that both the breach decision and the sanction decision are to be set aside.

1. The application for review is allowed.
2. The decision of the Local Government Standards Panel delivered on 8 August 2024, that the applicant committed a minor breach of the Local Government Act 1995 (WA) by contravening regulation 20 of Division 4 of the Local Government (Model Code of Conduct) Regulations 2021 (WA), is set aside.
3. The decision of the Local Government Standards Panel delivered on 17 December 2024, that the applicant be ordered to give a public apology, is set aside.
4. The proceeding is otherwise dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

[15] Exhibit A, page 27, with the full text being viewable only by scrolling in the relevant box in the electronic copy of the Complaint form.

[16] Exhibit A, page 27, with the full wording of the text message viewable in both the electronic and printed versions of the Complaint form.

[17] Exhibit A, page 27, being the text that can be seen without scrolling in the relevant box in the electronic copy of the Complaint form.

[19] Exhibit A, page 171; applicant's response to para 37 of the Intervenor's SIFAC.

[23] Exhibit A, page 164 in the response to para 9 of the Intervenor's SIFAC.

[28] See for example Exhibit A, pages 31, 33, 39, 41 and 43.

[29] With the same definition also cited in the Intervenor's SIFAC in this matter.