Local government ­ Regulation of local government councillors ­ Preliminary issues ­ Jurisdiction ­ Statutory interpretation ­ Whether there is a right of review of a finding of the Local Government Standards Panel that a breach alleged in a complaint did not occur ­ Whether there is a right of review of a finding of the Local Government Standards Panel that the Local Government Standards Panel does not have jurisdiction to determine a complaint against a former council member ­ Whether Local Government Standards Panel has jurisdiction to determine a complaint against a former council member ­ Use of secondary materials ­ Response to a question in Parliament

Local Government (Rules of Conduct) Regulations 2007 (WA), reg 7(1)(b)

Local Government Act 1995 (WA), s 5.105(1), s 5.106, s 5.107(1), s 5.107(3), s 5.110(2), s 5.110(2)(a), s 5.110(5), s 5.110(6)(a), s 5.110(6)(b), s 5.111, s 5.125, s 5.125(1), s 5.125(2)

State Administrative Tribunal Act 2004 (WA), s 3(1), s 13, s 14, s 29(1), s 37(1), s 38, s 47, s 47(1)(a), s 47(1)(b), s 47(2), s 51(1), s 54(1), s 54(3), s 60(2)

Section 5.125 of the Local Government Act 1995 (WA) does not confer a right of review of a finding of the Local Government Standards Panel that a minor breach alleged in a complaint did not occur or a finding of the Local Government Standards Panel that it does not have jurisdiction to determine a complaint of a minor breach against a former council member

Applications for review dismissed as misconceived pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA)

AB and State of Western Australia and Anor [2011] HCA 42; (2011) 281 ALR 694; (2011) 85 ALJR 1233; (2011) 46 Fam LR 1

Byrne and Shire of Broome [2006] WASAT 376; (2006) 48 SR (WA) 161

Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) [1981] HCA 26; (1981) 147 CLR 297

R v Bolten; ex parte Beane [1987] HCA 12; (1987) 162 CLR 514; (1987) 70 ALR 225

Western Australian Planning Commission v Dungey [2010] WASC 52

Yates and Local Government Standards Panel [2012] WASAT 23

1 Mr Donald Phillips made complaints alleging that council members of the City of Albany had committed 'minor breaches' under the Local Government Act 1995 (WA). The Local Government Standards Panel found that the alleged minor breaches did not occur and that it does not have jurisdiction to determine a complaint of a minor breach against former council members. Mr Phillips commenced proceedings in the Tribunal seeking review of these decisions under s 5.125 of the Local Government Act 1995.

2 The Attorney General intervened in the proceedings and raised preliminary issues as to whether s 5.125 of the Local Government Act 1995 confers a right of review in respect of findings of the Local Government Standards Panel that a minor breach alleged in a complaint did not occur and that the Local Government Standards Panel does not have jurisdiction to determine a complaint of a minor breach against a former council member.

3 The Tribunal programmed the preliminary issues for determination on the documents, but also referred the matter for mediation before a senior member at the offices of the City of Albany and required the parties to attend the mediation. The Tribunal decided to mandate mediation, because several of the parties were involved in litigation elsewhere arising out of the subject matter of the complaints. The Tribunal expressed 'deep concern' about that litigation in terms of time, expense and community relations. The Tribunal urged the parties, in the context of seeking to resolve these proceedings, to address underlying matters. Unfortunately, although the mediation took place, it was not successful and the Tribunal proceeded to determine the preliminary issues.

4 The Tribunal held that s 5.125 of the Local Government Act 1995 does not confer a right of review of a finding of the Local Government Standards Panel that a minor breach alleged in a complaint did not occur. Section 5.125(1) enables a party to apply to the Tribunal for a review of a 'decision' of a standards panel. Section 5.125(2) defines 'decision' as 'a decision to dismiss a complaint or to make an order'. Equivalent terminology of 'dismissing the complaint' and 'ordering' one or more of specified sanctions appears in, and only in, s 5.110(6), which provides for how a minor breach, if found to have taken place, is to be dealt with. The use of equivalent terminology to that found in the definition of 'decision' in s 5.125(2) in, and only in, s 5.110(6), provides a clear and compelling indication that the intention of the legislation is only to confer a right of review on a party where a standards panel has found that a council member has committed a minor breach and has dealt with the minor breach under s 5.110(6).

5 The Tribunal also held that s 5.125 of the Local Government Act 1995 does not confer a right of review of a finding of the Local Government Standards Panel that it does not have jurisdiction to determine a complaint of a minor breach against a former council member, for two reasons. First, this finding does not involve a 'decision' within the meaning of s 5.125. Second, s 5.110(5), which states that '[i]f the standards panel finds that a council member has committed a minor breach, the standards panel is required to give the council member an opportunity to make submissions as to how the breach should be dealt with', indicates that, in order to be the subject of a finding of a minor breach, a person must be a council member at the time of the finding. As the Local Government Standards Panel does not have jurisdiction to determine a complaint of a minor breach against a former council member, neither does the Tribunal on review.

6 However, the Tribunal did not place any reliance on a response given in Parliament by a parliamentary secretary in relation to whether the complaints provisions would apply to former council members, as secondary materials are not to be substituted for the text of legislation and the Tribunal's task is to ascertain the objective intention of the legislation.

7 The proceedings were dismissed on the basis that they were misconceived.

8 Mr Donald Phillips made two complaints against council members of the City of Albany (City or Council) alleging that the council members had committed minor breaches under the Local Government Act 1995 (WA) (LG Act). The Local Government Standards Panel (Panel) found, in respect of those persons the subject of the complaints who remained council members, that the alleged breaches did not occur, and, in respect of three former council members, that the Panel does not have jurisdiction to determine a complaint of a minor breach against them. The Tribunal is required to determine whether s 5.125 of the LG Act confers a right of review in respect of the Panel's findings.

9 On 27 October 2010, Mr Phillips made two complaints to the Complaints Officer of the City, pursuant to s 5.107(1) of the LG Act, alleging that certain council members had committed two minor breaches under the LG Act. On 2 November 2010, pursuant to s 5.107(3) of the LG Act, the Complaints Officer sent the complaint to the Panel.

10 In his first complaint, Mr Phillips alleged that Cr Dennis Wellington:

1. committed a breach of Standing Order 4.9(2) of the City of Albany Standing Orders Local Law (Standing Order 4.9(2)) by giving written notice of and reading out a motion at the Council's ordinary meeting on 15 December 2009 calling for the Council to request the Minister for Local Government to conduct an Inquiry in accordance with Pt 8 of the LG Act into '... inappropriate, recalcitrant and threatening behaviour by some elected members towards staff' at the City; and
2. committed a breach of reg 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007 (WA) (Conduct Regulations) by giving the notice and reading out the motion.

11 In his second complaint, Mr Phillips alleged that Cr Wellington, Cr Robert Sutton, Cr Christopher Holden, Cr Raymond Hammond, Cr Donald Dufty, Ms Joy Matla, Mr Desmond Wolfe and Mr James Swann each made improper use of their office as a council member, contrary to reg 7(1)(b) of the Conduct Regulations, to cause a detriment to the local government and council members, by being a signatory to the production and publication of an 'open letter' which was published by the Albany Advertiser newspaper on 31 August 2010 and the Albany and Great Southern Weekender newspaper on 2 September 2010. The open letter included the following:

We are collectively appalled, embarrassed and frustrated by the recent behaviour of some of our peers as they seek to claim damages by way of alleging defamation by respected citizens and organisations of our community, and against the City of Albany itself.

We find it untenable that they choose to remain on Council, whilst at the same time continuing to press charges against the very institution they form part of. We call on them to stand down immediately from all council activities until such time as these issues have been resolved.

No member, person in the public gallery, or any other person attending a meeting is to use objectionable expression in reference to any member, officer of the Council or any other person.

13 Regulation 7(1)(b) of the Conduct Regulations states as follows:

A person who is a council member must not make improper use of the person's office as a council member ­

...

(b) to cause detriment to the local government or any other person.

14 Under s 5.105(1) of the LG Act, a breach of either Standing Order 4.9(2) or reg 7(1)(b) of the Conduct Regulations by a council member would constitute a 'minor breach' for the purposes of the LG Act.

The Panel's consideration of Mr Phillips' complaints

15 The Panel received Mr Phillips' first complaint as proceeding SP 55 of 2010 and his second complaint as proceeding SP 56 of 2010. The Panel did not consider Mr Phillips' complaints until 4 November 2011, over a year after the complaints were sent to it by the Complaints Officer of the City.

16 In proceeding SP 55 of 2010, the Panel was satisfied that the words of the motion, notice of which was given and read out by Cr Wellington, 'can be viewed as relating to' two council members, namely, Cr Jill Bostock and Cr Roland Paver. However, whereas one of the three members of the Panel considered that the words 'recalcitrant' and 'threatening' more likely than not amounted to 'objectionable expressions' in the context in which they were used by Cr Wellington, a majority of the Panel were of the contrary view. The Panel found, therefore, by a majority of two to one, that Cr Wellington did not breach Standing Order 4.9(2). In relation to the alleged breach of reg 7(1)(b) of the Conduct Regulations, the Panel considered that it had not been established that Cr Wellington had the necessary intent to cause detriment to the local government or Crs Jill Bostock or Paver and found, therefore, that the alleged breach did not occur.

17 By the time the Panel came to consider the complaints, three of the people who were the subject of Mr Phillips' second complaint, namely, Ms Matla, Mr Wolfe and Mr Swann, had ceased to be council members of the City. In proceeding SP 56 of 2010, the Panel found that it does not have jurisdiction to determine a complaint of a minor breach against former council members. In relation to the existing council members, the Panel found that, although the council members each made improper use of their office in signing the open letter and causing it to be published, they did not breach reg 7(1)(b) of the Conduct Regulations, because they did not intend to cause a detriment to the local government or the other council members.

18 By letters dated 15 December 2011, the presiding member of the Panel advised Mr Phillips of the Panel's findings. On 10 January 2012, Mr Phillips commenced proceeding DR 4 of 2012 seeking review by the Tribunal of the Panel's 'decision' in its proceeding SP 55 of 2010. On 16 January 2012, Mr Phillips commenced proceeding DR 12 of 2012 seeking review by the Tribunal of the Panel's 'decision' in its proceeding SP 56 of 2010. In commencing each of these proceedings, Mr Phillips purported to exercise a right of review of a 'decision' conferred on 'a party' by s 5.125(1) of the LG Act. Section 5.125 of the LG Act states as follows:

(1) A party may apply to the State Administrative Tribunal for a review of a decision of a standards panel.

(2) In subsection (1) ­

decision means a decision to dismiss a complaint or to make an order.

19 The proceedings were listed for a directions hearing before myself and Senior Member Peter McNab on 10 February 2012. At the directions hearing, Mr CS Bydder appeared as counsel for the Panel and also for the Attorney General for Western Australia (Attorney General) who intervened in the proceedings pursuant to s 37(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). On behalf of the Attorney General, Mr Bydder foreshadowed jurisdictional issues as to whether Mr Phillips has a right of review under s 5.125 of the LG Act in relation to the Panel's findings.

20 At the directions hearing, the Tribunal also considered and granted applications by Cr Wellington, Ms Bostock (who has ceased to be a council member of the City), Cr David Bostock and Mr Paver (who has also ceased to be a council member of the City) for leave to be joined as parties, pursuant to s 38 of the SAT Act, in proceeding DR 4 of 2012, and applications by Cr Wellington, Cr Sutton, Ms Matla, Mr Wolfe, Cr Holden, Cr Dufty, Mr Swann, Ms Bostock, Cr David Bostock and Cr Hammond for leave to be joined as parties in proceeding DR 12 of 2012.

21 After noting the jurisdictional issue and determining the applications for joinder, the Tribunal said the following:

That brings [us] to the third category of issues, which is something that the Tribunal raised, and that was the possibility of the Tribunal allocating a senior member to attempt to mediate the issue which is before the Tribunal and, if possible, within the context of resolving that issue, to address underlying matters. [We are] deeply concerned about the underlying matters in this matter or in this proceeding. Albany is a small community and it appears that the issues that are the subject of the complaint are now also the subject of other proceedings in courts and may be the subject of even further proceedings in courts, we were told.

All of that will only result in additional time, expense, and is unlikely to resolve the underlying tension or community concern that has been foreshadowed or has been indicated. As members of the justice system, that is a matter of great concern to us. We have seen all too often matters that begin perhaps even as matters of principle consuming, like a whirlwind or a tsunami, everybody in its path. In a small community, that can be even more devastating than in a larger community, and in all places it's something to be avoided at all costs if at all possible. Life is short, and it is better lived.

We note that Mr Phillips in particular has expressed some significant doubts about mediation in this matter. Other parties have perhaps indicated that mediation is a useful process but that [it] has been tried with the Local Government Department. We are satisfied that we should order mediation in parallel to the process of determining the preliminary issues. The Tribunal has the power to order mediation despite the positions of the parties, and bearing in mind that which [we anticipate] will occur if this proceeding does not result in a resolution of underlying concerns in terms of time, expense for everyone concerned as well as for the justice system, it would be remiss [we] think of the Tribunal not to make an effort. That is not open-ended. In fact it is quite closed as to what the Tribunal can do ... (T:40.5­T:41.2; 10.02.12)

22 Section 54(1) of the SAT Act enables the Tribunal to 'refer the matter, or any aspect of it, for mediation'. Section 54(3) of the SAT Act states that '[t]he referral may be made with or without the consent of the parties'. For the reasons set out above, the Tribunal referred the proceedings for mediation on 30 March 2012 at the City's offices. The President subsequently listed Senior Member Maurice Spillane to conduct the mediation.

23 The Tribunal also made orders for the filing and exchange of written submissions and written submissions in reply in relation to the jurisdictional issues, and for the determination of the jurisdictional issues, as preliminary issues, entirely on the documents pursuant to s 60(2) of the SAT Act. Pursuant to s 51(1) of the SAT Act, the Tribunal ordered that the two proceedings are to remain as separate proceedings, but are to be heard and determined together.

24 The mediation occurred at the City's offices on 30 March 2012. At the conclusion of the mediation, Senior Member Spillane ordered that:

1. The mediation is at an end.
2. The order of 10 February 2012 and the timetable set out therein, together with any extensions granted, remain in place.
3. All documents relating to the mediation held in Albany on 30 March 2012 will be removed from the Tribunal file and filed separately.

25 It is most unfortunate that the parties did not successfully avail themselves of the opportunity afforded to them by the Tribunal in terms of mediation. Irrespective of the outcome of the present proceedings, it appears that, having not resolved underlying issues, a number of the parties will continue to be embroiled in litigation elsewhere, with its considerable costs, stresses and uncertainties.

26 The Attorney General has raised two preliminary issues for determination which can be expressed as follows:

1. Whether s 5.125 of the LG Act confers a right of review of a finding of the Panel that a minor breach alleged in a complaint did not occur.
2. Whether s 5.125 of the LG Act confers a right of review of a finding of the Panel that it does not have jurisdiction to determine a complaint of a minor breach against a former council member.

27 The term 'enabling Act' is defined in s 3(1) of the SAT Act to mean:

another Act, or a portion of another Act, under which jurisdiction is conferred on the Tribunal and, if relevant, it includes subsidiary legislation under that other Act

(1) A provision of an enabling Act that enables an application to be made to the Tribunal gives the Tribunal jurisdiction to deal with the matter concerned.

(2) In addition to the jurisdiction that an enabling Act gives to deal with a matter, the Tribunal has any jurisdiction that this Act gives in relation to that matter.

(3) The Tribunal also has the jurisdiction given by section 44(3) and (4).

A matter in which the Tribunal has jurisdiction comes within either its original jurisdiction or its review jurisdiction.

If the matter that an enabling Act gives the Tribunal jurisdiction to deal with is a matter that expressly or necessarily involves a review of a decision, the matter comes within the Tribunal's review jurisdiction.

31 It follows from these provisions that the Tribunal will only have jurisdiction to review a decision of an original decision-maker if a provision of an Act or subsidiary legislation confers that jurisdiction. It is common ground that the only legislative provision which confers jurisdiction on the Tribunal to review a decision of the Panel is s 5.125 of the LG Act.

32 Section 5.105(1) of the LG Act states as follows:

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

(a) a rule of conduct under section 5.104(1); or

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

A finding that a breach has occurred is to be based on evidence from which it may be concluded that it is more likely that the breach occurred than that it did not occur.

34 Section 5.107(1) of the LG Act states as follows:

A person who has reason to believe that a council member has committed a minor breach may complain of the breach by sending to the complaints officer a complaint in accordance with subsection (2).

35 Section 5.110 of the LG Act states, in part, as follows:

...

(2) After receiving a complaint allocated to it under subsection (1), a standards panel is required to ­

(a) make a finding as to whether the breach alleged in the complaint occurred; or

(b) send the complaint to the Departmental CEO under section 5.111.

...

(4) A standards panel is required to give each party written notice of the reasons for any finding it makes under subsection (2).

(5) If a standards panel finds that a council member has committed a minor breach, the standards panel is required to give the council member an opportunity to make submissions about how the breach should be dealt with under subsection (6).

(6) The breach is to be dealt with by ­

(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;

(c) ordering 2 or more of the sanctions described in paragraph (b).

(7) A standards panel is required to give to each party and the complaints officer notice of how it deals with the matter under subsection (6).

36 Finally, as noted earlier, s 5.125 of the LG Act states as follows:

(1) A party may apply to the State Administrative Tribunal for a review of a decision of a standards panel.

(2) In subsection (1) ­

decision means a decision to dismiss a complaint or to make an order.

Parties' submissions in relation to preliminary issues

37 In relation to the first preliminary issue, the Attorney General submitted:

The language of s 5.125(2) of the LG Act ­ which identifies the decisions which may be reviewed by the Tribunal ­ corresponds to the language of s 5.110(6). No reference is made to dismissing a complaint or making an order anywhere else in s 5.110. Section 5.125(2), when read with s 5.110, only confers jurisdiction on the Tribunal to hear and determine an application for review of a decision to deal with a minor breach under s 5.110(6).

As a minor breach can only be dealt with under s 5.110(6) if the [Panel] has found that the minor breach has occurred pursuant to ss 5.106 and 5.110(2)(a), it follows that:

(a) a negative finding [that is, a finding that a breach alleged in a complaint has not occurred] is not a 'decision' as defined by s 5.125(2); and

(b) the Tribunal does not have jurisdiction to hear and determine an application for review of a negative finding.

38 Mr Phillips argued that 'no parliament in a civilised society that exists by rule of law would ever intend to deny the opportunity of appeal to any decision where not all the facts were presented', which, he submitted, was the case in relation to the Panel's consideration of his complaints. Indeed, Mr Phillips suggested that the interpretation of s 5.125 of the LG Act advanced by the Attorney General would be 'Machiavellian' in that it would 'deny justice'. Mr Phillips submitted that:

To reach a conclusion is to reach a final determination. If the case is proved, an order is made (the order could be to dismiss the complaint). If the case cannot be proved[,] the case is dismissed. The Standards Panel has concluded their [sic] deliberations, nothing more can be presented. The Standards Panel has reached a resolution on the case and the final decision has been made. Having concluded that the case is not proven, by definition[,] it has been DISMISSED.

39 Councillor Wellington, Cr Sutton, Ms Matla, Mr Wolfe, Cr Holden, Cr Hammond, Cr Dufty and Mr Swann did not make any submissions in relation to the preliminary issues.

40 Ms Bostock referred to the use of the term 'dismiss' in legal dictionaries as meaning:

The ruling by a judge that all or a portion (one or more of the causes of action) of the plaintiff's lawsuit is terminated (thrown out) at that point without further evidence or testimony.

Thus[,] to dismiss a case is to determine that the case cannot be proved, it is the end of the matter [and] no further evidence can be considered.

The Standards Panel carefully chose the word Conclude rather than dismiss when they reached the end of their deliberations ...

To reach a conclusion is to reach a final determination if the case is proved an order is made, (all be it [sic] if that order may be to dismiss the complaint) if the case cannot be proved the case is dismissed. There is no middle ground, the case is either proved or not.

The Standards Panel has concluded [its] deliberations, nothing more can be presented, [it has] resolved the case, and a final decision has been made. Having concluded that the case is not proven, the case is by definition DISMISSED.

42 Referring to s 5.110(6)(a) of the LG Act, Ms Bostock submitted:

There would be no sense in a situation where a complaint concerning a proven 'Breach' is dismissed, whilst one that has not been proved remains on foot. It is ... somewhat ludicrous to suggest that to have one[']s complaint DISMISSED, one must be CONVICTED.

43 Referring to s 5.125 of the LG Act, Ms Bostock submitted:

This clause details that either party may apply to SAT whether the case has been proved or dismissed. It is after all unlikely that the defendant of a Complaint would have any purpose in appealing if their case had been dismissed. The appeal in the case of a dismissal therefore must be provided for the Complainant.

44 Councillor David Bostock made similar submissions to Ms Bostock. He submitted that:

The term 'to dismiss a complaint' uses common words, the meanings of which are well understood in their usual legal context of a not guilty verdict, or one in which the court finds insufficient evidence to support a continuation of the legal process.

There is no indication in s.5.125(2) that there is any intention to limit the meaning of 'to dismiss a complaint' solely to the circumstances outlined in s.5.110(6) of the Act. If that had been the case s.5.125(2) would have read 'decision means a decision to dismiss a complaint under the provisions of s.5.110 of the this Act', or words to that effect.

46 Mr Paver echoed Ms Bostock's submissions. He also made the following principal submissions:

A decision 'dismissing the complaint' in section 5.110(6) relates to section 5.110(5) and the right given therein to a respondent, after the Standards Panel has decided that a breach has occurred, to make a submission to the Standards Panel that it should deal with it by dismissing the complaint. By contrast, 'a decision to dismiss a complaint' in section 5.125(2) relates not to the right given to a respondent under section 5.110(5) but to the right given to both a complainant and a respondent in section 5.125(1) to apply to the State Administrative Tribunal for a review of a Standards Panel decision. ...

The construction given to the phrase 'a decision to dismiss a complaint' in section 5.125 by the [Attorney General] is not only at odds with what is ordinarily and commonly understood by the phrase but is discriminatory against complainants. ...

Parliament cannot readily be presumed to have intended to give the phrase 'a decision to dismiss a complaint' in section 5.125 a meaning that is extraordinary and discriminates against complainants. ...

Finally, it is submitted that if there is ambiguity in the legislation, as the [Attorney General's] submission suggests, the ambiguity should be resolved in favour of the fullest right of review for complainants as a matter of public policy ... [because] the Presiding Member has wide discretionary powers over the conduct of the inquisition the exercise whereof is capable of abuse under the influence of political considerations emanating from the Minister and Department of Local Government. Given this state of affairs, and the high cost of taking alternative proceedings for judicial review, public policy requires an interpretation of section 5.125 of the Act that resolves the ambiguity suggested by the [Attorney General's] submission in favour of a right of review for complainants that is not hollow but acts as a real and desirable check on the abuse of discretionary power.

47 In relation to the second preliminary issue, the Attorney General's submissions emphasised that s 5.107(1) of the LG Act enables a person who has reason to believe that a 'council member' has committed a minor breach to complain of the breach, and that a number of the provisions which regulate the process for consideration of such a complaint use the term a 'council member'. In particular, Mr Bydder referred to the terms of s 5.110(5) of the LG Act as follows:

Upon making a finding that 'a council member has committed a minor breach', the [Panel] must 'give the council member an opportunity to make submissions about how the breach should be dealt with under subsection (6)': LG Act s 5.110(5) (Emphasis added). Just as with the references to 'council member' referred to above, there is no reason to construe these references to council members as extending beyond sitting council members to include former council members.

A construction which confines the [Panel's] jurisdiction to complaints against sitting council members is also consistent with a response given in Parliament by a parliamentary secretary, Mr Murray, to a question as to whether Div 9 of Pt 5 of the LG Act would apply to former council members:

'The member queried whether the legislation could apply to ex­councillors. That will not be the case. The person would need to be a sitting councillor to be subject to these requirements.'

(Hansard, Legislative Assembly, 11 April 2006, p. 1447).

49 The only other party who made any specific submission in relation to the secondary preliminary issue was Cr David Bostock who 'accepts that the SAT does not have jurisdiction to hear an appeal against a Standards Panel decision involving a person who is no longer a sitting Councillor'.

Does s 5.125 of the LG Act confer a right of review of a finding that a minor breach did not occur?

50 In Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) [1981] HCA 26; (1981) 147 CLR 297, Mason and Wilson JJ stated, at 320, as follows:

The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole.

51 In AB and State of Western Australia and Anor [2011] HCA 42; (2011) 281 ALR 694; (2011) 85 ALJR 1233; (2011) 46 Fam LR 1, the High Court of Australia confirmed that:

What is comprehended by [a legislative provision] falls to be determined by construing its terms in the context of the [legislation] as a whole and by reference to its evident purposes. [Citations omitted]

52 In my view, the words 'a decision to dismiss a complaint or to make an order' in the definition of the term 'decision' in s 5.125(2) of the LG Act, when read in the context of the legislation as a whole, refer to a decision as to how to deal with a minor breach under s 5.110(6) of the LG Act (after a finding that a minor breach has occurred under s 5.110(2)(a)). Section 5.110(6) uses equivalent terminology for 'dismiss a complaint' in s 5.125(2), namely, 'dismissing the complaint' (para (a)), and for 'make an order' in s 5.125(2), namely, 'ordering' one or more of the sanctions set out in s 5.110(6)(b) (para (b) and para (c)). Equivalent terminology for 'dismiss a complaint' and 'make an order' is not used anywhere else in the provisions relating to complaints against council members in Div 9 of Pt 5 of the LG Act. The use of equivalent terminology to that found in the definition of 'decision' in s 5.125(2) in, and only in, s 5.110(6), provides a clear and compelling indication that the intention of the legislation is only to confer a right of review on a party where the Panel has dealt with a minor breach under s 5.110(6) (having found that a council member has committed a minor breach under s 5.110(2)(a)).

53 As, in its proceedings SP 55 of 2010 and SP 56 of 2010, the Panel found that the existing council members have not committed a minor breach, the Panel did not deal with any minor breach under s 5.110(6) of the LG Act. Therefore, Mr Phillips does not have a right to seek review of a 'decision' of the Panel under s 5.125. In consequence, the Tribunal does not have jurisdiction to entertain these proceedings.

54 Contrary to Mr Phillips' and Ms Bostock's submissions, although the Panel did, in effect, determine that the complaints against the current council members were not proven (as it found, under s 5.110(2)(a) of the LG Act, that the breaches alleged in the complaints did not occur), that does not, under the legislation, mean that 'by definition [the complaints] have been DISMISSED'. Under the legislation, the Panel does not have power to dismiss a complaint (under s 5.110(6)(a) of the LG Act) unless it has found that a council member has committed a minor breach (under s 5.110(2) of the LG Act). In these cases, as the Panel found that the council members in question have not committed any minor breach, it did not have power to, and did not, 'dismiss' a complaint. The Panel has not made a 'decision' within the meaning of s 5.125 of the LG Act and, consequently, Mr Phillips does not have a right to apply to the Tribunal for a review of any decision in these proceedings.

55 The Tribunal does not exercise a roving review jurisdiction in relation to statutory administrative or disciplinary decision-making. In order for the Tribunal to have jurisdiction in a matter, a statutory provision must confer jurisdiction upon it. It is within the exclusive province of the Parliament to decide whether, to what extent, and to whom, to confer a right to seek review in relation to statutory administrative and disciplinary decisions. This is not 'Machiavellian', as suggested by Mr Phillips, or 'extraordinary' or 'discriminatory', as suggested by Mr Paver. Rather, it is the law as enacted by the Parliament as legislator. The Parliament decided to confer a right of review under s 5.125 of the LG Act only in cases where a finding of a minor breach on the part of a council member has been made by the Panel, in which case the Panel must deal with the complaint by dismissing it or ordering one or more of the sanctions described in s 5.110(6)(b) of the LG Act.

56 In relation to Ms Bostock's, Cr David Bostock's and Mr Paver's submissions based on the common meaning of the words 'to dismiss a complaint', while, absent the terms of s 5.110 and, in particular, s 5.110(6) of the LG Act, the words in s 5.125(2) might well include a finding that a council member has not committed a minor breach, the terms of s 5.110 cannot be ignored and, indeed, form an important part of the context in which the meaning of s 5.125 is to be construed. It is correct that the Panel reached a final determination as to whether or not any existing councillor committed a minor breach, but having found that there was no minor breach, it did not have power to, and did not, 'dismiss a complaint'. It could only have done that, under the legislation, if it had found that a breach alleged in a complaint occurred. Furthermore, although it is correct that the Panel concluded, in effect, 'that the case is not proven', this does not relevantly mean, as Ms Bostock submitted, that there has been a decision to 'dismiss the complaint'.

57 Furthermore, while, as Cr David Bostock observed, s 5.125(2) of the LG Act could have, but did not, expressly limit the meaning of 'dismiss a complaint' to 'dismissing the complaint' under s 5.110(6)(a) (following a finding of breach), it is clear that the section has this meaning when it is read in its legislative context.

58 In relation to Ms Bostock's submission that 'there would be no sense in a situation where a complaint concerning a proven "breach" is dismissed, whilst one that has not been proved remains on foot', while under the legislation a complaint cannot be 'dismissed' unless there is a finding that there has been a breach, a complaint does not remain 'on foot' if there has been a finding that the breach alleged in a complaint has not occurred. Given that the complaint that may be made under s 5.107(1) of the LG Act is 'of the breach', if there is a finding that the breach alleged in the complaint has not occurred, the complaint is no longer 'on foot'. The terminology of 'dismissal' of a complaint applies under the legislation in a situation in which, although a breach is found to have occurred, none of the sanctions described in s 5.110(6)(b) are considered to be appropriate: see Yates and Local Government Standards Panel [2012] WASAT 23 (Yates) at [43] ­ [44].

59 As noted earlier, Ms Bostock also submitted that the fact that s 5.125 of the LG Act enables 'a party' to apply to the Tribunal for a review of a decision of a standards panel, and that a respondent to a complaint would be unlikely to seek review of a dismissal, indicates that 'the appeal in the case of a dismissal ... must be provided for the Complainant'. While it is correct that an entitlement to seek review in the case of a decision to dismiss a complaint will enable the complainant to seek review, it also enables the council member about whom the complaint was made to seek review on the basis that he or she did not commit the minor breach alleged in the complaint, as occurred in Yates. Furthermore, the entitlement under s 5.125 for a complainant to seek review of the dismissal of a complaint does not mean that the complainant has an entitlement to seek review of a finding that the breach alleged in the complaint has not occurred.

60 Section 5.110 of the LG Act creates two distinct steps for dealing with a complaint of a minor breach by the Panel. First, s 5.110(2) requires the Panel to make a finding as to whether the breach alleged in the complaint occurred (or to send the complaint to the Departmental CEO under s 5.111 of the LG Act). Second, if, and only if, the Panel finds that the breach alleged in the complaint did occur, the Panel is required, after complying with s 5.110(4) and s 5.110(5), to determine how the breach is to be dealt with under s 5.110(6) of the LG Act. Furthermore, the words 'a party' in s 5.125(1) still have work to do on the interpretation to which the Tribunal has arrived, because they enable a complainant to seek review of a decision to dismiss a complaint or to make an order following a finding by the Panel that a minor breach has occurred. Depending on the circumstances and the Panel's decision and reasons for decision, a complainant might seek review to argue for an order to be made imposing a sanction, rather than a dismissal, or for the imposition of a different or additional sanction or sanctions from that ordered by the Panel.

61 As noted earlier, Mr Paver submitted that 'a decision "dismissing the complaint" in section 5.110(6) relates to section 5.110(5) and the right given therein to a respondent after the Standards Panel has decided that a breach has occurred, to make a submission to the Standards Panel that it should be dealt with by dismissing the complaint'. This submission is incorrect. Although s 5.110(5) of the LG Act confers an entitlement to make submissions 'about how the breach should be dealt with under subsection (6)', s 5.110(6) regulates how 'the breach is to be dealt with', having regard not only to the council member's submissions, but also to all relevant circumstances.

62 Finally, in relation to Mr Paver's submission that there is 'ambiguity' which 'should be resolved in favour of the fullest right of review for complainants as a matter of public policy', in my view, Parliament's intention is clear and not ambiguous. The intention of the legislation is apparent from the use of equivalent terminology in, and only in, s 5.125(2) and s 5.110(6) of the LG Act.

Does s 5.125 of the LG Act confer a right of review of a finding that the Panel does not have jurisdiction to determine a complaint of a minor breach against a former council member?

63 In my view, s 5.125 of the LG Act does not confer a right of review by the Tribunal of a finding of the Panel that it does not have jurisdiction to determine a complaint of a minor breach against a former council member, for two reasons.

64 First, for reasons given in relation to the first preliminary issue, the finding of no jurisdiction does not involve a 'decision' within the meaning of s 5.125 of the LG Act.

65 Second, as the Attorney General submitted, s 5.110(5) of the LG Act clearly indicates that the intention of the legislation is that, in order for the Panel to have jurisdiction to determine whether a person committed a minor breach, that person must be a council member at the time of the Panel's determination. The words '[i]f a standards panel finds that a council member has committed a minor breach ...' require a finding that a person who is, at the time of the finding, a council member, has committed a minor breach. Furthermore, the words '... the standards panel is required to give the council member an opportunity to make submissions about how the minor breach should be dealt with under subsection (6)' require that the person about whom a finding of a minor breach has been made, and who must be given an opportunity to make submissions as to how the breach is to be dealt with, must be a council member at the time of the finding.

66 The Panel did not, therefore, have jurisdiction, as it correctly found, to determine the complaint of a minor breach against the three former councillors. Section 29(1) of the SAT Act states as follows:

The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decision­maker in making the reviewable decision.

67 Assuming that there was a reviewable decision before the Tribunal (which is not the case, for reasons given earlier), the Tribunal's functions and discretions would correspond to those exercisable by the Panel in making the reviewable decision. As the Panel does not have jurisdiction to determine a complaint of a minor breach against a former council member, neither does the Tribunal on review.

68 Finally, I note that I have not placed any reliance on the response given in Parliament by the parliamentary secretary to a question as to whether Div 9 of Pt 5 of the LG Act would apply to former council members, referred to in the Attorney General's submissions. As Beech J observed in Western Australian Planning Commission v Dungey [2010] WASC 52 at [32]:

... secondary materials must not be substituted for the text of the legislation: K­Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501 [53]. The words of the statute, not non­statutory words seeking to explain them, are of paramount significance: Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529 [22]; see also [82] ­ [84].

69 Similarly, the former Chief Justice of New South Wales, the Hon JJ Spigelman AC, has observed that:

The task of the courts is to interpret the words used by Parliament. ...

What is involved is the search for an objective intention of Parliament, not the subjective intention of ministers or parliamentarians. Subjective intention, even that of a minister expressed in a Second Reading Speech, is, as has often been held, not relevant. (The Intolerable Wrestle: Developments in Statutory Interpretation (2010) 84 ALJ 22 at 28).

70 In one of the decisions cited by the Hon JJ Spigelman AC in support of this observation, R v Bolten; ex parte Beane [1987] HCA 12; (1987) 162 CLR 514; (1987) 70 ALR 225, Mason CJ, Wilson and Dawson JJ gave, at 518; 227­8, what the learned authors of Statutory Interpretation in Australia (LexisNexis Butterworths, 7th Edition, 2011), DC Pearce and RS Geddes, describe at [3.24] as 'this salutary warning':

The words of a Minister must not be substituted for the text of the law. Particularly is this so when the intention stated by the Minister but unexpressed in the law is restrictive of the liberty of the individual. It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the court remains clear. The function of the court is to give effect to the will of Parliament as expressed in the law.

1. Section 5.125 of the LG Act does not confer a right of review of a finding of the Panel that a minor breach alleged in a complaint did not occur.
2. Section 5.125 of the LG Act does not confer a right of review of a finding of the Panel that it does not have jurisdiction to determine a complaint of a minor breach against a former council member.

72 Section 47(2) of the SAT Act states that, if the section applies:

... the Tribunal may order that the proceeding be dismissed or struck out and make any appropriate orders.

73 Section 47(1) of the SAT Act states that s 47 applies if, among other circumstances, the Tribunal believes that a proceeding is 'misconceived'. A review proceeding is 'misconceived' where the applicant does not have a right to seek review of the decision made by the original decision-maker and the Tribunal does not, therefore, have jurisdiction: Byrne and Shire of Broome [2006] WASAT 376; (2006) 48 SR (WA) 161. These proceedings are misconceived and should, therefore, be dismissed pursuant to s 47(2) of the SAT Act.

74 The Tribunal makes the following orders in each proceeding:

1. The preliminary issues are answered as follows:
   1. Section 5.125 of the Local Government Act 1995 (WA) does not confer a right of review of a finding of the Local Government Standards Panel that a minor breach alleged in a complaint did not occur.
   2. Section 5.125 of the Local Government Act 1995 (WA) does not confer a right of review of a finding of the Local Government Standards Panel that it does not have jurisdiction to determine a complaint of a minor breach against a former council member.
2. The proceeding is dismissed pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA) as misconceived.

I certify that this and the preceding [74] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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