RGM -v- CHOPPING [2026] WASC 116 (13 April 2026)

Criminal law - Offence of unlawfully participating in a discussion or decision making procedure after disclosing an interest, contrary to s 5.67 - Whether appellant held an interest under the Local Government Act 1995 (WA) - Meaning of 'financial interest' - Whether appellant allowed by other council members to participate in the meeting - Proper construction of s 5.68(1)

Criminal law - Offence of failing to disclose an interest in a matter contrary to s 5.65(1)

Criminal law - Whether appropriate for the Magistrate to determine question as to the validity of a resolution before the council - Whether a substantial miscarriage of justice in the circumstances - Turns on own facts

Constitution Act 1889 (WA), s 52

Criminal Appeals Act 2004 (WA), s 6, s 7, s 8, s 9, s 10, s 14, s 39, s 40

Criminal Procedure Act 2004 (WA), s 21, s 78

Evidence Act 1906 (WA), s 32

Local Government (Administration) Regulations 1996 (WA), r 21, r 30, r 31, r 32, r 34AC, r 34AD

Local Government (Model Code of Conduct) Regulations 2021 (WA), sch 1

Local Government Act 1995 (WA), s 1.3, s 2.6, s 2.7, s 5.20, s 5.21, s 5.60A, s 5.60B, s 5.61, s 5.62, s 5.63, s 5.65, s 5.67, s 5.68, s 5.69, s 5.73, s 5.103, s 5.104, s 9.25, s 9.37

Local Government Amendment Act 2004 (WA), s 43

Local Government Amendment Act 2024 (WA), s 42, s 160, s 161

Sentencing Act 1995 (WA), s 39(2) and s 45

Appellant's application to adduce additional evidence dismissed.

Leave to appeal on grounds 4 and 6 granted, but the appeal on those grounds is dismissed.

Leave to appeal on the remaining grounds is refused and the appeal is dismissed.

1. The appellant was, at the time of the offences the subject of this proceeding, an elected member of the council of a local government situated in the Perth metropolitan area (the Council), being a 'local government' under the Local Government Act 1995 (WA) (LGA).[1]
2. The appellant was charged with several breaches of the LGA, relating to his conduct as a member of the Council in failing to vote at several meetings of the Council and in connection with a financial interest he was alleged to have in a matter before the Council. The charges were laid by the Director General of the Department of Local Government, Sport and Cultural Industries, who is the named respondent to this appeal.
3. The offence provisions are all found within pt 5 of the LGA, which is headed 'Administration'. These provisions establish obligations and prohibitions which govern voting by council members, their participation in the meetings of councils, and the disclosure of certain interests as defined in the legislation.
4. The appellant was convicted of seven breaches of the LGA following a five-day trial in the Magistrate's Court, at which the appellant was legally represented. Total fines of $1,550 were imposed by the Magistrate, together with the benefit of spent conviction orders in respect of each of the offences, pursuant to s 39(2) and s 45 of the Sentencing Act 1995 (WA).
5. The purpose of the spent conviction orders was to relieve the appellant from the adverse effects of having the convictions recorded, which might present a particular impediment to the appellant following a particular career, practising a particular profession or undertaking particular employment.[2] Given this purpose, I consider it is appropriate to anonymise the appellant's name in these reasons and to omit any details which might enable the appellant to be identified, including the name of the Council, the representatives of the local government who were called as witnesses, and the identifying descriptions of the agenda items and motions.
6. The appellant now appeals to this court against his convictions on 11 separate grounds which challenge the findings and conclusions reached by the Magistrate below. There is no appeal against the sentences imposed. The appellant requires leave to appeal under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CAA). The appellant has not had the benefit of legal representation during the course of this appeal. It has been necessary to make due allowance for this in considering the submissions advanced by the appellant to ensure the gravamen of his challenges are properly understood.
7. These are my reasons for granting leave to appeal in respect of Grounds 4 and 6, but dismissing those grounds, and otherwise refusing leave to appeal on each of the remaining grounds and dismissing the appeal.

1. The breaches of the LGA were alleged to have occurred between June 2021 and September 2021, at five separate meetings of the Council. The meetings were held on the following dates, all of which were ordinary meetings of the Council other than the meeting on 22 June 2021 which was a special meeting of the Council:

(a) 15 June 2021;

(b) 22 June 2021;

(c) 20 July 2021;

(d) 17 August 2021; and

(e) 21 September 2021.

1. The prosecution proceeded to trial on five representative counts of breaches of s. 5.21(2) and s. 5.21(5) arising from failures to vote at each of the above meetings. The appellant was also charged with one offence of participating in a meeting after the disclosure of an interest (contrary to s 5.67), and one offence of failing to disclose an interest (contrary to s 5.65(1)).
2. The diagram in Attachment A to these reasons summarises the three categories of offences, together with the relevant meetings, agenda items and motions, which I will further describe in these reasons.

1. The first category of offences concerns the five offences for failing to vote, contrary to s 5.21(2) and s 5.21(5). The legislation requires that a council member who is present at a meeting of the council must vote, subject to s 5.67 which concerns disclosures of interest. It was found by the Magistrate that the appellant failed to vote on various motions at each of the five meetings of the council, as required by s 5.21(2).
2. The form of each charge under s 5.21(2) was as follows:

Being a council member who was present at a meeting of the [Council] and who was required to vote by section 5.21(2) of the Local Government Act 1995, failed to vote as set out in the particulars to this charge, contrary to section 5.21(5) of the Local Government Act 1995.

1. The appellant initially faced 34 separate charges alleging breaches of s 5.21(5). However, on the second day of trial a significant number of these charges were dismissed by the Magistrate following an interchange with both counsel regarding the framing of those charges. The trial thereafter proceeded on five representative charges for breaches of s 5.21(5). Specifically, one charge was identified for each of the five council meetings held on 15 June 2021, 22 June 2021, 20 July 2021, 17 August 2021 and 21 September 2021, at which the appellant was in attendance.

Section 5.67 of the LGA

1. The second category of offence concerns the single breach of s 5.67. The terms of the charge were as follows:

Being a council member who made a disclosure under section 5.65, participated in or was present during a discussion or decision making procedure relating to the matter, contrary to section 5.67 of the Local Government Act 1995.

1. Specifically, after disclosing an interest related to the funding by the council of the appellant's legal fees, the appellant was found to have participated in the discussion at the meeting on 22 June 2021, and was found to have voted on the motion, without approval under s 5.68(1), contrary to s 5.67.
2. The motion before the Council was to approve payment or financial assistance, by the Council, for the appellant's legal representation, pursuant to the Council's Legal Representation Policy dated 17 April 2008 (the Legal Representation Policy).[3] The Council had received a request from the appellant for legal assistance in relation to a matter before the State Administrative Tribunal involving the appellant. The motion was approved at the meeting on 22 June 2021. I will refer to the relevant motion at that meeting as the Legal Representation Motion.[4]
3. The breach was thus alleged to have occurred at the meeting of the Council held on 22 June 2021.

Section 5.65(1) of the LGA

1. The third category of offence concerns the single breach of s 5.65. The terms of the charge were as follows:

Being a council member who had an interest in a matter to be discussed at a council meeting that was to be attended by that member, failed to disclose the nature of that interest either in a written notice given to the CEO before the meeting or at the meeting immediately before the matter was discussed, contrary to section 5.65 of the Local Government Act 1995.

1. The motion in question was put before the Council at the meeting on 20 July 2021, and was in substance directed to rescinding or reversing the resolution made at the previous meeting in respect of the Legal Representation Motion. I will refer to the rescission motion in these reasons as the Rescission Motion. It was alleged at trial that, the appellant had a financial interest in the Rescission Motion as it concerned the rescission of the earlier decision by the Council to provide the appellant with financial assistance towards his legal fees. The Magistrate found the appellant failed to disclose the nature of that interest, as required, before the matter was discussed at the meeting, contrary to s 5.65(1).
2. As noted above, the breach was alleged to have occurred at the meeting of the Council held on 20 July 2021.

1. The conduct which grounded the charges had a common theme, being the decision by the appellant to complete a pro forma declaration of interest document, which he submitted to the Council ahead of each meeting. I will refer to each of these forms as the Declaration of Interest Form. I have incorporated copies of these forms into these reasons as Attachment B to Attachment H, with appropriate redactions.
2. The Declaration of Interest Form appears to have been specifically prepared for the purposes of this particular Council.[5] The forms are not a prescribed document, nor are they a document which was disseminated by the Department of Local Government, Sport and Cultural Industries.
3. In respect of six of these forms, the appellant declared he held an 'Interest under the Code of Conduct' in respect of various agenda items. There was no Code of Conduct in evidence at trial. In respect of one of the forms (Attachment G), the appellant declared he held an 'impartiality interest' under the Council's Code of Conduct.
4. The appellant also marked five of the forms, in terms of the nature and extent of the interest he held, with the words:

I do not possess all the information that I require to make an informed decision.

1. Two of the forms were marked in a different manner. One of the two forms completed on 22 June 2021 (forming part of Exhibit 10 - Attachment D) described the nature and extent of the interest as 'I am the Councillor seeking legal representation under [the Legal Representation Policy] '. Further, one of the two forms completed on 20 July 2021 (forming part of Exhibit 3 - Attachment F) described the nature of the interest by reference to the appellant's obligations under the LGA and associated regulations and, curiously, explained the extent of the declared interest by reference to an assertion that voting on the item would constitute a breach of the local laws.
2. As I have said, the remaining forms described the nature and extent of the interest using the lack of information language referred to above.
3. The reverse side of each form is a schematic diagram described as 'Figure 3: Section 5.68(1) of the Local Government Act 1995'. The diagram appears to show the 'circumstances in which members may allow you to stay and participate in relation to a matter', based on the heading to the diagram. At the bottom of the reverse side of the form is a statement that directs council members to the 'Councillors Manual for further information'.
4. The Declaration of Interest Forms might be said to have four parts to them. The first part allows the council member to insert their name and refer to the specific agenda items in respect of which they wish to disclose an interest. The second part allows the council member the ability to select the type of interest they wish to declare, as well as the nature and extent of that interest. This second part of the form is extracted below for ease of reference:

1. In all but one instance, the appellant selected the 'Interest under the Code of Conduct' box on the forms which he submitted.
2. The third part of the form allows the council member to indicate whether they wish to 'Leave' the meeting, 'Stay and Observe', 'Stay and Discuss', or 'Stay, Discuss and Vote'. The fourth and final part of the form allows for a decision by the Council to be recorded, being either 'Decision Not Required', 'Stay and Observe', 'Stay and Discuss' or 'Stay, Discuss and Vote'.
3. In summary, the appellant relevantly gave seven of these forms to the Council, being Exhibits 3, 9, 10, 11 and 13,[6] declaring an interest under the 'Code of Conduct' (or an impartiality interest in one case) in respect of 48 agenda items across the five meetings of the Council. The appellant did not vote on 34 motions at those meetings in reliance on these declarations.

1. The grounds of appeal prepared by the appellant raise a multitude of issues of variable merit, but there are some central points which were the focus of the appeal hearing and which can be briefly stated.
2. First, there is an application by the appellant to adduce additional evidence on this appeal, pursuant to s 40(1)(e) of the CAA.
3. Second, there is an issue as to the legal effect within the context of the LGA of the Declaration of Interest Forms completed by the appellant, and whether, by those forms, the appellant had made a disclosure under s 5.65. This requires a consideration of the interaction between the voting obligation in s 5.21, the disclosure obligation in s 5.65, and the prohibitions in s 5.67. This is raised by Grounds 1 and 2.
4. Third, there is an issue as to whether the appellant had a 'financial interest' within the meaning of s 5.60A in respect of the Legal Representation Motion and Rescission Motion which were dealt with at the Council meetings on 22 June 2021 and 21 July 2021 respectively. This is raised by Ground 7.
5. Fourth, there is an issue as to the operation of s 5.68(1) by which the non-disclosing members may allow a disclosing member to be present, preside and participate in meetings in certain defined circumstances. This is raised by Ground 4.
6. Fifth, there is an issue as to the jurisdiction of a criminal court to consider the legal validity of a motion before a local government, which arises in the context of the Rescission Motion which was put before the Council at the meeting on 21 July 2021. This is raised by Ground 6.
7. Sixth, there is question as to the limitation periods applicable to the commencement of proceedings for offences under s 5.21, s 5.65 and s 5.67. This is raised by Ground 11.

The Local Government Act

1. Before I address the proceedings at first instance and the reasons of the Magistrate, it is necessary to set out the legislative framework in some detail.

1. The long title to the LGA states that it is 'An Act to provide for a system of local government in Western Australia, to amend the Local Government Act 1960 and for related purposes'. The purposes of the legislation are expressly detailed in s 1.3(1) and s 1.3(2), in the following terms:

1.3. Content and intent

(1) This Act provides for a system of local government by -

(a) providing for the constitution of elected local governments in the State; and

(b) describing the functions of local governments; and

(c) providing for the conduct of elections and other polls; and

(d) providing a framework for the administration and financial management of local governments and for the scrutiny of their affairs.

(a) better decision making by local governments; and

(b) greater community participation in the decisions and affairs of local governments; and

(c) greater accountability of local governments to their communities; and

(d) more efficient and effective local government.

1. Part 5 of the LGA is headed 'Administration'. Among other matters, this part of the legislation deals with council meetings, committees and their meetings, and electors' meetings. Relevantly for the purposes of this appeal, the legislation establishes the framework for the convening of, and the procedure at, council meetings, principally within div 2 thereof.
2. Pursuant to s 5.2, a council of a local government 'is to ensure that there is an appropriate structure for administering the local government'. Section 5.3 provides that a council 'deliberates, and makes its decisions, at meetings held in accordance with this Act', and states that a council is to hold ordinary meetings and may also hold special meetings.
3. Subdivision 3 of div 2 of that part is headed 'Matters affecting council and committee meetings', and includes s 5.21 which provides as follows:

5.21 Voting

(1) Each council member and each member of a committee who is present at a meeting of the council or committee is entitled to one vote.

(2) Subject to section 5.67, each council member and each member of a committee to which a local government power or duty has been delegated who is present at a meeting of the council or committee is to vote.

(3) If the votes of members present at a council or a committee meeting are equally divided, the person presiding is to cast a second vote.

(4) If a matter is voted on at a meeting of a council or committee, the following information must be recorded in the minutes -

(a) the total votes cast for;

(b) the total votes cast against;

(c) the individual vote of each member of the council or committee.

(4A) Subsection (4) does not apply to a vote that is required to be by secret ballot under Schedule 2.3.

(4B) Regulations may prescribe how information is to be recorded for the purposes of subsection (4)(a), (b) or (c).

(5) A person who fails to comply with subsection (2) or (3) commits an offence.

Penalty for this subsection: a fine of $10 000.[7]

1. Section 5.21(2) creates an obligation on the part of council members to vote when present at a council meeting. The obligation established by s 5.21(2) is expressly subject to s 5.67 of the LGA which is engaged where a member makes a disclosure under s 5.65. These provisions, that is s 5.65 and s 5.67, are found within div 6 of pt 5.

1. This division is headed 'Disclosure of financial interests and gifts'. This regime establishes obligations on council members and committee members to make disclosures of certain interests, being 'direct financial interests', 'indirect financial interests' and 'proximity interests', and details how this effects the capacity of such members (referred to as a 'disclosing member') to attend, participate and vote at meetings of a council or committee.
2. The statutory obligation for a member to make a disclosure is found in s 5.65, which states:

5.65. Members' interests in matters to be discussed at meetings to be disclosed

(1) A member who has an interest in any matter to be discussed at a council or committee meeting that will be attended by the member must disclose the nature of the interest -

(a) in a written notice given to the CEO before the meeting; or

(b) at the meeting immediately before the matter is discussed.

Penalty for this subsection: imprisonment for 24 months and a fine of $24,000.

(2) It is a defence to a prosecution under this section if the member proves that the member did not know -

(a) that the member had an interest in the matter; or

(b) that the matter in which the member had an interest would be discussed at the meeting.

(3) This section does not apply to a person who is a member of a committee referred to in section 5.9(2)(f).

1. The defence in s 5.65(2) was not part of the appellant's case at trial, nor on appeal.
2. The regime defines the interests which are caught by the legislation in s 5.60 to s 5.63. Relevantly for present purposes, a member (defined as a 'relevant person') will have an interest in a matter if he or she, or a person with whom they are 'closely associated', has 'a direct or indirect financial interest in the matter' or 'a proximity interest in the matter': see s 5.60. The focus in the present proceedings is on the term 'financial interest'. The terms of s 5.60 are as follows:

For the purposes of this Subdivision, a relevant person has an interest in a matter if either -

(a) the relevant person; or

(b) a person with whom the relevant person is closely associated,

(c) a direct or indirect financial interest in the matter; or

(d) a proximity interest in the matter.

1. The term 'closely associated' is defined in s 5.62, but is not relevant for present purposes. It is sufficient to observe that the definition is widely drafted, capturing partners in a partnership, an employer, a beneficiary under a trust of which the relevant person is the trustee, and bodies corporate of which the relevant person is a director, secretary or executive officer or in which he or she holds a prescribed amount or percentage of shares.
2. Section 5.60A defines a 'financial interest' as follows:

5.60A. Financial interest

For the purposes of this Subdivision, a person has a financial interest in a matter if it is reasonable to expect that the matter will, if dealt with by the local government, or an employee or committee of the local government or member of the council of the local government, in a particular way, result in a financial gain, loss, benefit or detriment for the person.

1. The word 'financial' in s 5.60A applies distributively to the concepts of 'gain', 'loss', 'benefit' and 'detriment'. The concepts are directed at the financial consequences which might reasonably be expected to flow to the council member from the way in which a particular matter before a council is determined.
2. Section 5.60B defines a 'proximity interest' in the following manner:

5.60B. Proximity interest

(1) For the purposes of this Subdivision, a person has a proximity interest in a matter if the matter concerns -

(a) a proposed change to a planning scheme affecting land that adjoins the person's land; or

(b) a proposed change to the zoning or use of land that adjoins the person's land; or

(c) a proposed development (as defined in section 5.63(5)) of land that adjoins the person's land.

(2) In this section, land (the proposal land) adjoins a person's land if -

(a) the proposal land, not being a thoroughfare, has a common boundary with the person's land; or

(b) the proposal land, or any part of it, is directly across a thoroughfare from, the person's land; or

(c) the proposal land is that part of a thoroughfare that has a common boundary with the person's land.

(3) In this section a reference to a person's land is a reference to any land owned by the person or in which the person has any estate or interest.

1. Section 5.61 defines an 'indirect financial interest' as follows:

A reference in this Subdivision to an indirect financial interest of a person in a matter includes a reference to a financial relationship between that person and another person who requires a local government decision in relation to the matter.

1. Section 5.63 provides that certain interests need not be disclosed. This includes, for example, an interest common to a significant number of electors or ratepayers, an interest in the imposition of any rate, charge or fee by the local government, an interest relating to a fee, reimbursement of an expense, or an allowance, which are referred to within s 5.98, s 5.98A, s 5.99, s 5.99A, s 5.100 or s 5.101(2), and an interest relating to a fee or reimbursement of an expense in accordance with a policy adopted by the local government under s 5.129. Section 5.63 states, in part, as follows:

5.63. Some interests need not be disclosed

(1) Sections 5.65, 5.70 and 5.71 do not apply to a relevant person who has any of the following interests in a matter -

(a) an interest common to a significant number of electors or ratepayers; or

(b) an interest in the imposition of any rate, charge or fee by the local government; or

(c) an interest relating to -

(i) a fee, reimbursement of an expense or an allowance to which section 5.98, 5.98A, 5.99, 5.99A, 5.100 or 5.101(2) refers; or

(ia) the payment of a superannuation contribution payment under section 5.99B; or

(ii) a gift permitted by section 5.100A; or

(iii) reimbursement of an expense that is the subject of regulations made under section 5.101A; or

(iv) a fee or reimbursement of an expense in accordance with a policy adopted by the local government under section 5.129;

1. I pause to note that s 5.63 was found by the Magistrate not to be applicable in the present matter, although the appellant had sought to invoke the provision.
2. Where a disclosure has been given before the meeting in question, the CEO is required to cause the notice to be given to the person who is to preside at the meeting and, at the meeting, the person presiding is to bring the notice and its contents to the attention of the persons present immediately before the matters to which the disclosure relates are discussed: s 5.66.
3. Where a member has made a disclosure under s 5.65, the terms of s 5.67 are engaged. The terms of s 5.67, s 5.68 and s 5.69 are set out below:

5.67. Disclosing members not to participate in meetings

A member who makes a disclosure under section 5.65 must not -

(a) preside at the part of the meeting relating to the matter; or

(b) participate in, or be present during, any discussion or decision making procedure relating to the matter,

unless, and to the extent that, the disclosing member is allowed to do so under section 5.68 or 5.69.

Penalty: imprisonment for 24 months and a fine of $24 000.

5.68. Councils and committees may allow members disclosing interests to participate etc. in meetings

(1) If a member has disclosed, under section 5.65, an interest in a matter, the members present at the meeting who are entitled to vote on the matter -

(a) may allow the disclosing member to be present during any discussion or decision making procedure relating to the matter; and

(b) may allow, to the extent decided by those members, the disclosing member to preside at the meeting (if otherwise qualified to preside) or to participate in discussions and the decision making procedures relating to the matter if -

(i) the disclosing member also discloses the extent of the interest; and

(ii) those members decide that the interest -

(I) is so trivial or insignificant as to be unlikely to influence the disclosing member's conduct in relation to the matter; or

(II) is common to a significant number of electors or ratepayers.

(a) the interest disclosed is an interest relating to a gift; and

(b) subsection (1B) or (1C) applies to the gift.

(1B) This subsection applies to the gift if the disclosing member was or is required by regulations under section 4.59(a) to provide information about the gift in relation to an election.

(1C) This subsection applies to the gift if -

(a) the amount of the gift exceeds the amount prescribed for the purposes of this subsection; or

(b) the gift is 1 of 2 or more gifts made by 1 person to the disclosing member at any time during a year and the sum of the amounts of those 2 or more gifts exceeds the amount prescribed for the purposes of this subsection.

(2) A decision under this section is to be recorded in the minutes of the meeting relating to the matter together with -

(a) the extent of any participation allowed by the council or committee; and

(b) if the decision concerns an interest relating to a gift, the information prescribed for the purposes of this paragraph.

(3) This section does not prevent the disclosing member from discussing, or participating in the decision making process on, the question of whether an application should be made to the Minister under section 5.69.

5.69. Minister may allow members disclosing interests to participate etc. in meetings

(1) If a member has disclosed, under section 5.65, an interest in a matter, the council or the CEO may apply to the Minister to allow the disclosing member to participate in the part of the meeting, and any subsequent meeting, relating to the matter.

(2) An application made under subsection (1) is to include -

(a) details of the nature of the interest disclosed and the extent of the interest; and

(b) any other information required by the Minister for the purposes of the application.

(3) On an application under this section the Minister may allow, on any condition determined by the Minister, the disclosing member to preside at the meeting, and at any subsequent meeting, (if otherwise qualified to preside) or to participate in discussions or the decision making procedures relating to the matter if -

(a) there would not otherwise be a sufficient number of members to deal with the matter; or

(b) the Minister is of the opinion that it is in the interests of the electors or ratepayers to do so.

(4) A person must not contravene a condition imposed by the Minister under this section.

Penalty for this subsection: imprisonment for 24 months and a fine of $24 000.

(5) A decision under this section must be recorded in the minutes of the meeting relating to the matter.

1. By virtue of s 5.73, disclosures made under s 5.65 (and certain other provisions) are required to be recorded in the minutes of the meeting relating to the disclosure.

1. This division was headed 'Conduct' at the time of the relevant offences, having been inserted into the LGA in 2007. It provides a regime whereby regulations are to be prescribed for a model code of conduct for council members and others. The model code of conduct is to include general principles of behaviour, requirements relating to behaviour and provisions specified to be rules of conduct: s 5.103(2).
2. Local governments are to prepare and adopt a code of conduct to be observed by council members and others which incorporate the model code: s 5.104(1).
3. For the purposes of s 5.103, a model code of conduct has been prescribed in sch 1 to the Local Government (Model Code of Conduct) Regulations 2021 (WA) (the Model Code of Conduct Regulations). The model code addresses matters such as the personal integrity, accountability and general behaviour of council members. The model code also addresses the disclosure of certain interests.
4. The Model Code of Conduct Regulations came into effect on 2 February 2021, and repealed the Local Government (Rules of Conduct) Regulations 2007 (WA). The Model Code of Conduct Regulations were thus in effect at the time of the offences in this matter. However, the Declaration of Interest Forms submitted by the appellant make reference to an interest of 'Impartiality pursuant to Regulation 11 of the Local Government (Rules of Conduct) Regulations 2007'. A substantially similar provision is now found in cl 22 of sch 1 to the Model Code of Conduct Regulations, which addresses 'impartiality' interests, and provides as follows:
   1. Disclosure of interests

(a) means an interest that could, or could reasonably be perceived to, adversely affect the impartiality of the person having the interest; and

(b) includes an interest arising from kinship, friendship or membership of an association.

(2) A council member who has an interest in any matter to be discussed at a council or committee meeting attended by the council member must disclose the nature of the interest -

(a) in a written notice given to the CEO before the meeting; or

(b) at the meeting immediately before the matter is discussed.

(3) Subclause (2) does not apply to an interest referred to in section 5.60 of the Act.

(4) Subclause (2) does not apply if a council member fails to disclose an interest because the council member did not know -

(a) that they had an interest in the matter; or

(b) that the matter in which they had an interest would be discussed at the meeting and the council member disclosed the interest as soon as possible after the discussion began.

(5) If, under subclause (2)(a), a council member discloses an interest in a written notice given to the CEO before a meeting, then -

(a) before the meeting the CEO must cause the notice to be given to the person who is to preside at the meeting; and

(b) at the meeting the person presiding must bring the notice and its contents to the attention of the persons present immediately before any matter to which the disclosure relates is discussed.

(6) Subclause (7) applies in relation to an interest if -

(a) under subclause (2)(b) or (4)(b) the interest is disclosed at a meeting; or

(b) under subclause (5)(b) notice of the interest is brought to the attention of the persons present at a meeting.

(7) The nature of the interest must be recorded in the minutes of the meeting.

1. Part 9 is headed 'Miscellaneous provisions'. Within div 2 of pt 9, the statute includes provisions dealing with time limits for prosecutions and evidentiary facilitative provisions, among other matters.
2. Section 9.25 addresses the time limits for prosecutions, and relevantly provides:

9.25. Prosecutions, time limit for

(1) Proceedings for an offence against a provision of this Act listed in the Table may be commenced at any time.

(2) Proceedings for any other offence against this Act may be commenced within 2 years after the offence was committed, but not later.

1. Section 9.37 concerns the use of meeting minutes as evidence, and provides:

9.37. Using meeting minutes as evidence

(1) Evidence of a matter that is recorded in a document purporting to be a certified copy of all or any part of confirmed meeting minutes may be given by tendering the document.

(2) In subsection (1) -

meeting minutes means the minutes of a meeting of a council or committee in which the matter is recorded.

1. The foregoing provision does not render the confirmed meeting minutes as conclusive, or even prima facie, evidence of the events of the meeting.

The proceedings at first instance Overview of the trial

1. Having set out the relevant statutory provisions, the proceedings at first instance can now be summarised. Given the appeal is against the appellant's convictions and the grounds of appeal are widely drafted, it is necessary to undertake a thorough review of the evidence at first instance and of the Magistrate's reasons, with a particular focus on the points of challenge identified by the appellant in his grounds of appeal.[8]
2. The trial before the Magistrate commenced on 8 February 2024, and continued on 9 February 2024, 5 March 2024, 11 April 2024, and then finally on 3 July 2024. In broad terms, the evidence before the Magistrate at trial consisted of the oral evidence of the three witnesses called by the prosecution, the oral evidence of the appellant, a significant volume of documentary material, and the formal admissions made by the appellant pursuant to s 32 of the Evidence Act 1906 (WA) (Evidence Act).[9]
3. At the outset of the trial, an issue arose as to the late disclosure of certain documents, which led the Magistrate to encourage the parties to agree facts for the purposes of the proceeding. This appears to have led to the formal admissions being made by the appellant, which I will summarise below. The prosecution then opened its case and the trial was otherwise adjourned to the following morning. Counsel for the defendant gave an opening statement thereafter, and explained to the Magistrate the proposed defence to each of the charges.
4. As earlier noted, the appellant was legally represented at trial. Further, it is apparent from the course of the trial, which was spread over some months, that the appellant had a fair opportunity to respond to the charges against him, and to marshal appropriate evidence in response. I do not detect from the transcript of the proceedings below any lack of opportunity in this regard or unfairness to the appellant, and I also observe that the appellant did not make a no-case to answer submission at the conclusion of the prosecution's case.
5. All of these matters are important to recognise given the appellant's attempts to raise fresh matters on this appeal. It is of course elementary that a party remains bound by the conduct of his case at first instance, although exceptional circumstances may permit a departure, as explained by the High Court in University of Wollongong v Metwally [No 2].[10]

1. During the trial, the prosecution called three witnesses, each of whom was cross-examined by the appellant.
2. The first witness was the former Executive Manager of Governance and Legal Services at the Council, who gave evidence on 9 February 2024 (the Executive Governance Manager).[11] The second witness was the Governance Coordinator at the Council, who was later promoted to Head of Governance, who gave evidence on 9 February 2024 and 5 March 2024 (the Governance Coordinator).[12]
3. Both the Executive Governance Manager and the Governance Coordinator had been long-standing employees of the Council.
4. Finally, a Senior Investigator at the Department of Local Government, Sport and Cultural Industries, Mr Steven Bertoli, gave evidence on 11 April 2024.
5. On 3 July 2024, the appellant testified in his own defence, but did not call any additional witnesses. The appellant was cross-examined.

1. Several documentary exhibits were tendered during the course of the trial, all of which have been made available to this court on appeal. I will summarise these below.
2. The minutes of the relevant meetings of the Council were tendered at trial, as certified copies, pursuant to the evidentiary facilitative provision in pt 9 of the LGA, without objection but not by consent.[13]
3. The minutes tendered by the prosecution related to the following meetings of the Council:

(a) the ordinary council meeting held on 15 June 2021;[14]

(b) the special council meeting held on 22 June 2021;[15]

(c) the ordinary council meeting held on 20 July 2021;[16]

(d) the ordinary council meeting held on 17 August 2021;[17] and

(e) the ordinary council meeting held on 21 September 2021.[18]

1. The minutes of an earlier council meeting, held on 26 June 2018, were also adduced in evidence, but assumed less relevance at the trial.[19]
2. The prosecution tendered the Declaration of Interest Forms which had been completed by the appellant.[20]
3. The Council's Legal Representation Policy[21] was tendered, together with various emails between the appellant and representatives of the Council,[22] and a letter from the investigating officer to the appellant.[23]
4. In addition, several electronic exhibits were tendered by the prosecution at the trial.[24] These consisted of the audio recording of the meeting of the Council on 22 June 2021, the audiovisual recording of the meeting of the Council on 30 July 2021, and the video record of interview (VROI) of the appellant conducted by the investigating officers on 20 July 2021. The VROI was tendered by consent.[25]
5. Portions of the recording of the meetings of the council were played during the course of the trial, and the Magistrate indicated he would watch the VROI in his chambers. It is evident from the Magistrate's reasons that he reviewed all of the electronic exhibits.
6. The Code of Conduct referred to in each of the Declaration of Interest Forms signed by the appellant was not tendered in evidence. That was not an oversight. The prosecutor had made it clear at trial that she regarded the Code of Conduct as irrelevant.[26]

1. I have mentioned above the formal admissions made by the appellant at trial. It is necessary to set out the salient admissions at this point.
2. As to the ordinary meeting of the Council held on 15 June 2021, the appellant admitted that:[27]

(a) On 15 June 2021, by email sent at 5.02pm, the appellant provided a Declaration of Interest Form dated 15 June 2021 to the Council (Attachment B). In that form, the appellant declared an interest in 11 agenda items, and declared the type of interest was an 'Interest under the Code of Conduct', and declared the nature and extent of the interest was 'I do not possess all the information that I require to make an informed decision'.

(b) The appellant did not declare any other interests in the items on the agenda for that meeting.

(c) On 15 June 2021, an ordinary meeting of the Council was held between 6.33pm and 9.55pm. The appellant attended the meeting from 6.33pm until 9.55pm, and did not leave the chamber during that time.

1. As to the special meeting of the Council held on 22 June 2021, the appellant admitted that:[28]

(a) On 22 June 2021, by email sent at 4.55pm, the appellant provided to the Council, a Declaration of Interest Form dated 22 June 2021 and digitally signed at 16:28:54hrs (Attachment C), and a Declaration of Interest Form dated 22 June 2021 and digitally signed at 16:53:00hrs (Attachment D).

(b) In the Declaration of Interest Form dated 22 June 2021 and digitally signed at 16:28:54hrs, the appellant declared an interest in two agenda items, declared the type of interest was an 'Interest under the Code of Conduct', and declared the nature and extent of the interest was 'I do not possess all the information that I require to make an informed decision'.

(c) In the Declaration of Interest Form dated 22 June 2021 and digitally signed at 16:53:00hrs, the appellant declared an interest in one agenda item (the Legal Representation Motion), declared the type of interest was an 'Interest under the Code of Conduct', and declared the nature and extent of the interest was - 'I am the Councillor seeking legal representation' under the Legal Representation Policy.

(d) The appellant did not declare any other interests in the items on the agenda for this meeting.

(e) On 22 June 2021, a special meeting of Council was held between 6.04pm and 8.45pm. The appellant attended the meeting from 6.04pm until 8.45pm, and did not leave the chamber during that time. At the meeting, the appellant was present in the chamber for and participated in discussion of the Legal Representation Motion.

1. As to the ordinary meeting of the Council held on 17 August 2021, the appellant admitted that:[29]

(a) On 17 August 2021, by email sent at 5.46pm, the appellant provided a Declaration of Interest Form dated 17 August 2021 to the Council (Attachment G).

(b) In the form, the appellant declared an interest in 12 agenda items, declared the type of interest was an 'Impartiality Interest' under the Code of Conduct, and declared the nature and extent of the interest was 'I do not possess all the information that I require to make an informed decision'

(c) The appellant did not declare any other interests in the items on the agenda for this meeting.

(d) On 17 August 2021, an ordinary meeting of the Council was held between 6.30pm and 8.50pm.

1. As to the ordinary meeting of the Council held on 21 September 2021, the appellant admitted that:[30]

(a) On 21 September 2021, the appellant provided a Declaration of Interest Form dated 21 September 2021 to the Council prior to the start of the meeting (Attachment H).

(b) In the form, the appellant declared an interest in 12 agenda items, declared the type of interest was an 'Interest under the Code of Conduct'. The appellant declared the nature of the interest as 'Code of Conduct' and the extent of the interest was 'I do not possess all the information that I require to make an informed decision'

(c) The appellant did not declare any other interests in the items on the agenda for this meeting.

1. The parties filed written closing submissions in lieu of oral submissions, copies of which have been provided to this court on appeal. The Magistrate reserved his decision on 3 July 2024 and subsequently delivered his detailed oral reasons on 16 September 2024, setting out the evidence and his legal and factual findings.[31]
2. The Magistrate found the seven offences had been established to the necessary standard, imposed total fines of $1,550 and ordered the appellant to pay the respondent's costs. The Magistrate further ordered that each of the convictions be spent convictions.

1. The Magistrate made a number of introductory and orthodox remarks concerning the burden of proof and the fact finding process, identified the relevant charges before the court, and then summarised the evidence of the witnesses. The Magistrate further remarked that much of the oral evidence was not in dispute and so it was not therefore necessary to summarise the entire testimony of the witnesses.

1. As to the evidence of the Executive Governance Manager, the Magistrate noted that he had oversight of all governance matters. This included matters in relation to the meetings of the Council meetings, as well as the minutes, agenda and protocols for those meetings. In his evidence, the Executive Governance Manager described the processes surrounding monthly meetings of the Council including the pre-meeting agenda forums and the procedures to be followed at the meetings. He also described the procedure for members of the Council to disclose their interests.
2. In his evidence, the Executive Governance Manager identified the Declaration of Interest Form which had been submitted by the appellant in connection with a Council meeting held on 20 July 2021 (Exhibit 3). A complete copy of the first page of the form is incorporated into these reasons as Attachment E. The appellant in fact submitted two such declaration of interest forms for the meeting of the Council to be held on 20 July 2021, both of which form part of Exhibit 3, both being signed by the appellant on 20 July 2021 and emailed to the governance email address maintained by the Council.
3. As earlier noted, the evidence reveals that the several of these forms were completed and signed by the appellant (being Exhibits 3, 9, 10, 11, 12 and 13).
4. The first Declaration of Interest Form dated 20 July 2021 (Attachment E) refers to nine separate agenda items, refers to an interest under the Code of Conduct and states, as the 'nature of my interest' and the 'extent of my interest', that: 'I do not possess the information I require to make an informed decision'. This Declaration of Interest Form stated that the appellant wished to 'Stay and discuss'.
5. The second Declaration of Interest dated 20 July 2021 (Attachment F) refers to the rescission motion agenda item, also refers to an interest under the Code of Conduct and states, as the 'nature of my interest' that 'I am an Elected Councillor of the [Council] and am required to adhere to the Local Government Act 1995, associate Regulations and the [Council] meeting Procedures. The 'extent of my interest' is stated as, Voting on this item will constitute a breach of s 18.4(2)(a) of the [Council]'s [Procedures] due to [the Legal Representation Policy] already being actioned'. The declaration also states that the appellant wished to 'Stay and discuss'.
6. I note that each of the Declaration of Interest Forms completed by the appellant which are relevant to this matter indicated that the appellant wished to 'Stay and discuss' the matter, other than the second of the forms completed on 22 June 2021 which referred to the Legal Representation Motion. That was the only form in which the appellant indicated he wished to 'Stay, discuss and vote' (emphasis added).
7. The Magistrate also made reference in his reasons to the Legal Representation Policy issued by the Council.
8. The Executive Governance Manager gave evidence in relation to the electronic exhibits to which I have earlier referred. The evidence of the Governance Coordinator was briefly summarised by the Magistrate in his reasons. The witness had explained the process for 'live-typing' the minutes of the meeting of the Council and that the proceedings were recorded using both audio and visual means. The Governance Coordinator also testified as to the process by which members of the Council would declare interests and how these were dealt with during the course of meetings.
9. Mr Bertoli, the Senior Investigator, gave evidence in relation to the interview he conducted with the appellant on 21 July 2021 (Exhibit 5), and he was cross-examined about a letter which had been sent to the appellant on 29 May 2019 by another investigator at the Department (Exhibit 8). The Magistrate ultimately considered this previous correspondence had little impact on the outcome of the proceedings.
10. As to the evidence of the appellant's conduct at the meetings of the Council which was relevant to the charges of failing to vote contrary to s 5.21, the Magistrate had before him the certified minutes of the meetings. The minutes record that the appellant 'abstained from voting' in respect of the various motions relied upon by the prosecution. Examples can be seen in the following references:

(a) the minutes of the ordinary meeting of Council on 15 June 2021, on page 29, in respect of a resolution for agenda item [redacted], which record that the appellant 'abstained from voting on the matter';[32]

(b) the minutes of the ordinary meeting of Council on 15 June 2021, on page 50, in respect of a resolution for agenda item [redacted], which record that the appellant 'abstained from voting on the matter';[33]

(c) the minutes of the ordinary meeting of Council on 22 June 2021, on page 11, in respect of a resolution for agenda item [redacted], which record that the appellant 'abstained from voting on the matter';[34]

(d) the minutes of the ordinary meeting of Council on 20 July 2021, on page 39, in respect of a resolution for agenda item [redacted], which record that the appellant 'abstained from voting on the matter';[35]

(e) the minutes of the ordinary meeting of Council on 17 August 2021, on page 70, in respect of a resolution for agenda item [redacted], which record that the appellant 'abstained from voting on the matter';[36]

(f) the minutes of the ordinary meeting of Council on 21 September 2021, on page 32, in respect of a resolution for agenda item [redacted], which record that the appellant 'abstained from voting on the matter';[37] and

(f) the minutes of the ordinary meeting of Council on 21 September 2021, on page 67, in respect of a resolution for agenda item [redacted], which record that the appellant 'abstained from voting on the matter'.[38]

1. The Magistrate next addressed the possible application of s 78 of the Criminal Procedure Act 2004 (WA) (CPA), in the context of the closing words of s 5.67 of the LGA, which provide - 'unless and to the extent that the disclosing member is allowed to do so under section 5.68 or 5.69.' The question addressed by the Magistrate was whether these words established an 'exception' for the purposes of s 78 of the CPA, noting that s 78 provides that:

If a written law creates a simple offence and provides an exception in respect of the offence, the exception is to be taken not to apply unless the accused proves, on the balance of probabilities, that it does.

1. The Magistrate concluded that the words in s 5.67 did not create an exception, relying on Chugg v Pacific Dunlop Limited[39] and Overland Corner Station Pty Ltd v Gould,[40] acknowledging that the statutory construction process required in this regard was not straightforward. The Magistrate ultimately considered there were features of the legislative scheme, particularly the requirement that council meetings are open to the public which meant that the existence of any disclosures was not a matter peculiarly within the knowledge of the accused, which pointed in favour of a construction that s 78 of the CPA did not apply.
2. The Magistrate concluded as follows:[41]

So the existence of a disclosure by a member under 5.65 is not a matter exclusively within the knowledge of the accused. The absence of a declaration of interest under the Act is easily capable of being proved by the prosecution. The same can be said about the approval to vote under sections 5.68 and 5.69. All of these matters are matters of clearly and narrowly defined scope.

These features favour a conclusion that the disclosure obligation contained in section 5.67, which is relevant to a charge under 5.21, and the approval to vote in sections 5.68 and 5.69, are not exceptions to the purposes of section 78 of the Criminal Procedure Act, and therefore need to be proved beyond reason to doubt as elements of the offences under section 5.21 and 5.67 respectively. Although I acknowledge that this is a finely balanced question, in the end I cannot find any clear legislative intention in relation to either of these charges imposing upon an accused an obligation to establish the existence of an exception. So I proceed on the basis that section 78 of the Criminal Procedure Act has no application.

1. There was no appeal or other challenge on this point in the proceedings before this court. For the purposes of this appeal, and echoing his Honour's assessment that the issue was finely balanced, I will assume without deciding that it was for the prosecution to establish beyond reasonable doubt the non-existence of the exclusionary matters in s 5.68. That is how the Magistrate approached the task.

Offences of failing to vote contrary to s 5.21(2) and (5)

1. The Magistrate summarised the position in relation to the five offences of failing to vote contrary to s 5.21(2) and s. 5.21(5), holding that the prosecution was required to establish beyond reasonable doubt that the appellant:

(a) was a member of the Council;

(b) was present at the relevant meetings;

(c) did not vote at those meetings; and

(d) had not declared an interest under s 5.65.

1. On the evidence, and given the admissions made by the appellant, the Magistrate focused his attention on the effect of the Declaration of Interest Forms completed by the appellant in respect of the meetings of the Council held on 15 June 2021, 22 June 2021, 20 July 2021, 17 August 2021, and 21 September 2021. In this regard, the Magistrate rejected the contention that the sixth footnote on the forms in effect implied that all declarations were made 'under the LGA', and concluded that the standard forms were a 'one size fits all' document and that the appellant, as an educated councillor of some four years' standing, did not truly believe he was making a disclosure under the LGA. The sixth footnote appears at the conclusion of the words 'The extent of my interest is', and reads as follows:
   1. Describe the extent of your interest (if seeking to participate in the matter under s 5.68 of the Act).
2. The Magistrate concluded that the appellant did not actually intend to make a disclosure of interest for the purposes of the LGA at any of these meetings, in respect of any of the relevant motions, noting further that the evidence of the appellant on the issue was vague. The Magistrate's concluding comments on this point are as follows:[42]

Assuming a council member has a proper understanding of their legal obligations, it would have to be appreciated that note 6 [to the Declaration of Interest Forms] only has any relevance if the person completing the form has disclosed that they have a financial interest under the Act, a proximity interest under the Act, or an indirect financial interest under the Act. If disclosing only an interest under the code of conduct, note 6 clearly has no relevance. Just because the accused chose to answer the question in relation to the extent of the interest to which note 6 relates, does not make the form a disclosure of interest under the Act.

Indeed, I reject any possibility that the accused actually believed at the time that he was making a disclosure of interest under the Act. The accused is university educated to postgraduate level. As of June 2021, he had been a Local Government councillor for approximately four years. His evidence in relation to whether he actually had a financial interest in any of the relevant agenda items was vague to the point of being unhelpful.

If he did believe that he might have had a disclosable financial interest under the Act, it would be expected - to state the rather obvious - that he would have ticked the box indicating that he had a financial interest to declare. The accused did not do this. In the record of interview that was conducted on 21 July, when questioned about the wording of his disclosure forms, the accused made no suggestion that he believed that he was, in fact, making a disclosure under the Act. In fact, he suggested otherwise. In the record of interview, he's asked about declarations of interest in relation to the meeting on 15 June. This question was asked of him by Mr Bertoli.

You declared an interest under the code of conduct, which is just under your code of conduct; it's not under the Act because you didn't have enough information on those 11 items.

The accused said, "Yes". In other words, the accused seemed to accept in the record of interview that he was not making a disclosure of interest under the Act. When asked during the [record of interview] why he didn't vote, the accused on more than one occasion stated that he felt unable to vote on ethical grounds because he had not been given information that he felt he needed to cast a vote. I find that in completing and submitting these declaration forms, the accused did not intend to disclose a financial or any other disclosable interest under the Act. (emphasis added)

1. Further, the Magistrate concluded that the appellant did not in fact disclose a financial or other disclosable interest under the LGA. The Magistrate concluded that the Declarations of Interest Forms completed by the appellant did not relieve him of the statutory obligation to vote on the relevant motions at each of these meetings.
2. The Magistrate also rejected any reliance on the events in 2019 as a basis for a defence by the appellant under s 24 of the Criminal Code. In essence, the appellant invited the court to accept that because another council member had apparently failed to vote in the same circumstances at a council meeting in 2019, and a decision was made by a particular investigator not to pursue the matter, the appellant was entitled to operate on the mistaken belief that he was not required to vote. In the view of the Magistrate, this was clearly a mistake of law and s 24 had no application.[43]
3. The Magistrate concluded that he was satisfied beyond reasonable doubt that the appellant was obliged as a matter of law to vote on the motions which relates to the five charges brought under s 5.21, and was similarly satisfied beyond reasonable doubt that the appellant was guilty of the five charges of failing to vote.[44]

Offence of participating after disclosure contrary to s 5.67

1. This charge, and the charge alleging a breach of s 5.65, both concerned the request apparently made by the appellant for the Council to provide financial assistance to the appellant in respect of his legal fees. The financial assistance was sought in relation to a matter before the State Administrative Tribunal involving the appellant. The request was made under the Legal Representation Policy, which describes its policy objectives as follows:[45]

The Council is committed to protecting the interests of Elected Members and employees in seeking legal advice or where they become involved in civil legal proceedings in the course of their official duties.

The Council will in certain circumstances provide financial assistance to Elected Members and employees who are required to engage the legal services of an approved lawyer as a result of lawful actions they have undertaken in the fulfilment of their official duties.

1. The Legal Representation Policy permits elected members and employees to be afforded assistance up to $10,000.[46]
2. A motion was put at the meeting on 22 June 2021 for the financial assistance to be provided to the appellant pursuant to the Legal Representation Policy. The motion was described as: 'Request for Legal Assistance - Elected Member'. The officer of the Council with responsibility for the issue had recommended that the Council refuse the request.[47] The motion was approved at the meeting on 22 June 2021, by 6 votes to 5 votes, with the appellant being recorded as one of the council members who voted in favour of the motion.[48]
3. At the following meeting of the Council, on 20 July 2021, a motion was put before the Council entitled 'Rescission Motion - Request for Legal Assistance - Elected Member'. The evident purpose of that motion, which was agenda item 16.1 at the meeting, was to rescind the decision of the Council to approve the appellant's request for financial assistance which had been made on 22 June 2021.
4. Returning then to the offence alleged to have occurred on 22 June 2021, amounting to a breach of s 5.67, the Magistrate found that the appellant had a financial interest in the motion to approve the funding for his legal representation, which could result in a benefit to him of up to $10,000.
5. The Magistrate reasoned that although the appellant labelled his interest as a 'Code of Conduct' matter, the substance of the disclosure was sufficient to be recognized as a 'financial interest' under the LGA. It is to be noted that the appellant expressly described the nature and extent of his interest as being the 'Councillor seeking legal representation under [the Legal Representation Policy]'.
6. The Magistrate concluded that:[49]

I have little difficulty in finding that the accused had a financial interest in the resolution before the council concerning the approval for a contribution towards his legal fees. If approved, at very least the resolution would lead to the accused receiving a financial benefit. If lost, the resolution would result in the accused suffering a financial detriment. I find the accused did have a financial interest under the Act that he was required to disclose.

1. The Magistrate described the process under the LGA as being 'underpinned by the assumption that a council member knows and understands their obligations of disclosure under the Act', and stated that:[50]

A council member cannot avoid the obligation to vote where there's a potential conflict of interest simply by identifying an interest as only an interest under the code of conduct.

1. The Magistrate thus found the appellant was a member who had made a disclosure under s 5.65, in the written form which is Attachment D to these reasons, the disclosure in substance being of a 'financial interest' though the relevant box to declare such an interest was not marked by the appellant.
2. Having formed these conclusions, it remained necessary for the court to consider whether the Council had allowed the appellant to stay and vote under s 5.68. The Magistrate found that the other members of the Council had not followed the formal process of addressing the requisite statutory factors, such as whether the interest was trivial or common to many ratepayers, and had not conducted a vote to grant him permission. The Magistrate held as follows:[51]

I find that prior to voting on [the Legal Representation Motion] at the meeting on 22 June, the members present at that meeting did not address the factors set out in s 5.68(1)(b)(i) and (ii), as part of any decision-making process to determine whether the accused should be allowed to vote. I also find that they did not conduct a vote to decide this issue, that is, whether the accused should be allowed to vote on the motion. The accused effectively conceded this during cross-examination.

1. The notation in the minutes of the meeting suggesting the appellant was allowed to stay and vote was found by the Magistrate to be insufficient to satisfy the statutory requirements of the LGA. That notation was as follows:[52]

Request Stay, Discuss, and Vote.

Decision Leave Stay, Discuss, and Vote.

1. This notation is somewhat confusing, in my view. In particular, it remains unclear why the notation begins with the words 'Decision Leave' rather than simply 'Decision'.
2. Further, the Magistrate noted the evidence of the Governance Coordinator of the Council at trial to the effect that her 'understanding of the normal processes that are followed where there is a disclosure of interest by a member in relation to a particular council meeting' was that, 'where a member had declared a financial or proximity interest under the Act, it would be assumed that a member would leave the meeting and not participate unless there was...a resolution of the council to not leave'.[53]
3. The Magistrate then referred to the evidence concerning the process where there is a disclosure under the Code of Conduct. The Governance Coordinator testified that the disclosure would simply be noted by the Council in that circumstance, and it would then be 'assumed the disclosing member will stay and vote'.[54] In relation to the appellant's disclosure made in relation to the meeting on 20 July 2021, the Magistrate observed that the Governance Coordinator was cross-examined on this point and she gave evidence that the appellant 'would not have been' given leave by the Council to 'stay and discuss and vote' in the sense there would not have been any decision by the Council. Her evidence in this regard stemmed from the nature of the declared interest, being an interest under the Code of Conduct.
4. The Magistrate stated that:[55]

None of the council members who were present at the council meeting on 22 June, to which this charge relates, were called to give evidence.

Assuming, however, that the councillors were generally aware of their obligations under s 5.68, it would be expected that there would be some form of formal decision-making process to decide if a member could vote where there is a disclosure of interest under the Act. In other words, [the Governance Coordinator's] general evidence in relation to this usual procedure, and the usual procedure that is adopted where there's a declaration of interest does make sense from a legal point of view.

1. Further to this, the Magistrate referred to the audio recording of the meeting of the Council on 22 June 2021, as follows:[56]

Moreover, the audio recordings of the proceedings on 22 June 2021 ... supports a finding that although the matter of the accused's disclosure intention to vote was discussed, ultimately it was decided that as the accused disclosed an interest only under the Code of Conduct, it was not necessary to consider the matter further. The recording confirms that there was no vote by the other members present allowing the accused to vote.

I find, therefore, that despite the reference in the minutes of the meeting on 22 June, which suggested the existence of a decision to allow the accused to vote... the accused had not, in fact, been allowed to vote under the relevant provisions of the Act. That is, he had not been allowed to vote under s 5.68(1)(b) of the Act. I'm satisfied with this beyond reasonable doubt.

It follows the prosecution has proved beyond reasonable doubt each of the elements that are required to be proved in relation to the charge under s 5.67, and I find the accused guilty of this charge.

Offence of failure to disclose interest contrary to s 5.65

1. As to the charge relating to the breach of s. 5.65, the Magistrate determined the appellant had a financial interest in the Rescission Motion concerning his legal assistance.
2. As noted above, this charge focused on the motion to rescind the decision made by the Council on 22 June 2021 to grant the appellant financial assistance under the Legal Representation Policy. The minutes concerning the Rescission Motion are found in Exhibit 1C, at page 102.
3. The Magistrate was satisfied beyond reasonable doubt that the appellant was to attend the Council meeting on 20 July 2021 in the relevant sense required by the legislation, and that he did in fact attend the meeting. The Magistrate found that he left just prior to the passing of the Rescission Motion, but was present for earlier discussion of procedural motions concerning the issue.[57] The motion to rescind the earlier approval was carried by a majority of 8 votes to 2 votes, with a set of reasons provided by one of the council members to explain the decision.[58]
4. The Magistrate rejected the appellant's claim that this was an exempt 'reimbursement of an expense', noting the specific legal criteria for such exemptions did not apply.
5. The Magistrate found that the appellant's declaration form, which cited a breach of the Council's local laws (Attachment F), was merely a statement of a legal position and failed to disclose the nature and extent of his financial interest as required by s 5.65. It is not in dispute that the Council had resolved to make a local law, which I will refer to as the Meeting Procedures Local Law 2017. The Magistrate found that:[59]

As I've mentioned, the interest was disclosed in the category of a Code of Conduct interest. As I mentioned previously, in describing the nature and extent of the interest in the relevant declaration form, the accused simply made references in slightly different ways to his obligations under the [Council's] Meeting Procedures Local Law 2017. Now, clearly, these statements were a statement of what the accused considered to be a legal position in relation to the rescission motion.

The declaration of interest on its face and as a matter of substance did not disclose the nature of the interest the accused had in the motion. It was not in any sense a disclosure of a financial interest as required under 5.65. And it's not suggested the accused properly disclosed any financial interest in any other manner. I find that he did not. I'm satisfied beyond reasonable doubt, therefore, the accused did not disclose the nature of his interest in the motion to rescind.

1. As to the appellant's argument that the Rescission Motion itself was invalid under local law, the Magistrate reasoned that it was not the court's role in a criminal trial to declare council proceedings invalid without a prior determination from a competent jurisdiction.[60]

1. The legislative framework for this appeal is found in the CAA. An aggrieved party may appeal against a conviction.[61] Any such appeal must be filed within 28 days, unless the court orders otherwise.[62]
2. The grounds of appeal may include a complaint that there has been an error of law or fact, or of both law and fact, that the court acted without or in excess of jurisdiction, and that there has been a miscarriage of justice.[63]
3. Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding,[64] meaning that the ground is required to have a rational and logical prospect of succeeding.[65] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[66]
4. Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[67]
5. Pursuant to s 14(1) of the CAA, this court on appeal may dismiss the appeal, may allow the appeal, or may set aside or vary the decision of the court below and the sentence imposed, order made or thing done as a result of the decision. Additionally, pursuant to s 14(1)(d) of the CAA, the court may substitute a decision that should have been made by the court below.

1. There were 11 grounds of appeal detailed in the document entitled 'Grounds for Appeal' attached to the affidavit of the appellant sworn on 4 June 2025 (Folio 21), which this court subsequently ordered to stand as the grounds of appeal.[68] That document also contained the primary written submissions of the appellant, stretching to some 243 paragraphs, which I will refer to in these reasons as AS.
2. The grounds of appeal overlap in part. The appellant's submissions in support of each ground are not, in every case, confined by the stated appeal ground. The grounds, as drafted by the appellant, are as follows:

Ground 1: The wording of the charges against the appellant do not indicate a legislative breach and are an error of law.

Ground 2: The finding that the appellant, an elected Councillor of the Council, declared an interest not pursuant to law, but pursuant to a non-legal method, is itself an error of law and an error of fact.

Ground 3: The court exceeded its jurisdiction by finding the meaning of Council decisions, documents, processes and outcomes.

Ground 4: The court found that the Council's approvals under s 5.68 on elected Councillor declarations of interest were invalid is an error of law and of fact.

Ground 5: The court's finding that the appellant 'was to attend the meeting' is an error of law and an error of fact.

Ground 6: The court's finding that a 'rescission motion' existed is an error of law and of fact.

Ground 7: The court's finding that the appellant had a 'financial interest' resulting from the Executive Governance Manager legal threat against him is an error of law and of fact.

Ground 8: The court's finding that the Executive Governance Manager had 'oversight of all governance matters' is an error of law.

Ground 9: The court's finding that the Governance Coordinator 'was responsible for running the council and committee meetings and public forums' is an error of law.

Ground 10: The court's finding that the appellant agreed with an alleged 'question' of Steven Bertoli is an error of fact.

Ground 11: The court did not have the jurisdiction to consider the charges against the appellant.

1. The respondent relied on an outline of submissions and list of authorities dated 12 September 2025 (Folio 29), together with an aide memoire showing the exhibits and evidence at first instance.[69] I will refer to the respondent's outline as RS1.
2. In addition, the court made orders on 14 November 2025, giving leave to the parties to file supplementary written submissions in relation to Ground 6 of the appeal.[70] These orders were made after I had raised a question during the hearing of the appeal as to whether the Magistrate's conclusion that the court must assume the validity of the Rescission Motion was supported by authority.
3. Pursuant to the grant of leave, the respondent filed an outline of supplementary submissions on 1 December 2025 (RS2). The appellant filed no further submissions in this regard. I have addressed this issue under Ground 6 below.

1. The parties provided the court with various documents which in effect, represented a record of the proceedings below. The court was provided with the prosecution notice dated 11 May 2023 (Folios 3 and 11), the exhibits tendered at trial, and the transcript of the proceedings below (Folios 4 to 8).
2. The appellant sought to adduce additional evidence for the purposes of this appeal. The appellant swore an affidavit in this regard on 16 July 2025 to which he attached a witness statement for the appeal titled 'Appellant's Evidence' (Folio 26). This document included a critique of the actions of the Council and the Department, commentary on the evidence before the Magistrate and further evidence which the appellant proposed to give in respect of matters which were the subject of evidence at trial. Nothing in the statement appeared to be probative of the issues before the Magistrate or of relevance to the determination of the appeal. At the hearing of the appeal, I indicated I would consider whether the additional evidence would be admitted as part of my overall consideration of the appeal, an approach which was supported by counsel for the respondent.[71]
3. The respondent's position in relation to the further evidence of the appellant was that it was 'just' to admit the evidence at [46] to [50] of the statement, under the heading 'Proceedings', although the respondent observed that the evidence did not 'go to any ground of appeal'.[72] As to the remainder of the evidence, the respondent submitted that the evidence 'variously either recounts evidence already traversed at trial, is irrelevant, or constituted submissions, opinions or is speculative'.[73] Those objections have real substance in my view.[74] Much of the evidence wad duplicative.
4. This court has the power to admit additional evidence on an appeal such as the present: s 40(1)(e) of the CAA. This power is wide. The court must otherwise decide an appeal on the evidence that was before the lower court: s 39 of the CAA.
5. The submissions advanced by the respondent should largely be accepted given the irrelevant and inadmissible nature of the proposed evidence and the absence of any explanation as to why this material was not adduced at trial, bearing in mind the appellant was legally represented at that stage. The appellant's strong desire to admit this evidence does not provide a proper justification for allowing a fresh summary of his position to be admitted as evidence on appeal. There is no reason this material could not have been adduced at trial. I recognise the respondent indicated it did not seek leave to cross-examine the respondent in the event the evidence was admitted, but nonetheless the process by which the court would weigh this fresh material in the context of the evidence already led at trial, and the findings of the Magistrate, would be unwieldy. Some of the matters raised by the appellant in his proposed further evidence were also matters that had not been put to the witnesses for the prosecution at trial.
6. I do not accept the respondent's submission that it is appropriate to admit the evidence at [46] to [50] of the appellant's witness statement. The evidence in this regard contains criticisms of the Magistrate's demeanour during the trial and while delivering his oral reasons, including suggestions the appellant was precluded from giving his full testimony at trial and statements which the appellant says were made by the Magistrate directed towards the appellant which were not captured on the transcript.
7. While I accept that the evidence of the matters detailed at [46] to [50] could not have been raised at the trial, given it relates to observations of the Magistrate and the course of the trial, I fail to see how any of this material is germane to the appellant's grounds of challenge on this appeal, nor do I find any support for these criticisms in the transcript of the proceedings below.
8. I therefore refuse the appellant's application to allow any of this additional evidence on appeal and his application to adduce the evidence will be refused.

1. During the course of the appeal hearing, the appellant raised challenges to the reception of certain evidence at trial, particularly the minutes of the meetings of the Council and the VROI. As I have noted, the minutes were tendered without objection, pursuant to s 9.37, and the VROI was tendered by consent.
2. Thus, the appellant did not raise objections at the trial to the evidence which he now contends is inadmissible. In these circumstances, it is incumbent on the appellant to demonstrate that a miscarriage of justice was occasioned.[75] As will be apparent from the reasons which follow, I do not consider the appellant has identified any miscarriage in the present matter from the reception of this evidence.

Proper construction of the offence provisions Relevant principles of statutory constructions

1. Several of the grounds of appeal in this matter require a consideration of the meaning and effect of provisions within pt 5 of the LGA. The parties have adopted different approaches to these provisions, particularly s 5.21, s 5.65, s 5.67 and s 5.68. It is convenient to address the proper construction of these provisions in one section of these reasons, rather than in a segmented fashion across the various grounds of appeal.
2. Ahead of doing this, I should identify the established principles of statutory construction, which may briefly be stated as follows.[76]
3. The focus of statutory construction is upon the text of the statutory provisions having regard to their context and purpose.
4. The statutory text is the surest guide to Parliament's intention. A decision as to the meaning of the text requires consideration of the context, in its widest sense, including the general purpose and policy of the provision. The context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed.
5. The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions. Identifying the legislative purpose is itself an objective exercise of statutory construction, which does not involve a search for what those who promoted or passed the legislation may have had in mind when it was enacted.

1. By virtue of s 52(1) of the Constitution Act 1889 (WA), the Western Australian Parliament is required to maintain 'a system of local governing bodies elected and constituted in such manner as the Legislature may from time to time provide'. Pursuant to s 52(2), each such elected governing body 'shall have such powers as the Legislature may from time to time provide being such powers as the Legislature considers necessary for the better government of the area in respect of which the body is constituted'.
2. The LGA embodies the present regime by which Parliament has established this system of local governing bodies. The LGA came into operation in July 1996, replacing the majority of the Local Government Act 1960 (WA). The LGA has been the subject of significant amendments since its introduction, following several extensive reviews which have been undertaken over the past 30 years.
3. Consistent with the orthodox principles of statutory construction, it must surely be important in construing the provisions of the LGA to have firmly in mind the purposes of that enactment as they are stated in s 1.3 and to recognise that the regime is intended to provide for a system of local government across the State. Of particular significance to the provisions in div 6 pt 5 of the legislation and the disclosure of interests by council members are:

(a) the express purpose stated within s 1.3(1)(d) that the regime provides a 'framework for the administration and financial management of local governments and for the scrutiny of their affairs'; and

(b) the intended result of Parliament which is to provide for 'greater accountability of local governments to their communities', which appears in s 1.3(2)(c).

1. Further, I note that the 'general function' of a local government is to provide for the 'good government of persons in its district', which appears in s 3.1(1) of the LGA.
2. The objectives of scrutiny, transparency and accountability in respect of the affairs of a local government, and the general function of 'good government', strongly resonate across the provisions found in div 6 pt 5 of the LGA, which is headed 'Disclosure of financial interests and gifts'. The notion of accountability may also be inferred as underpinning the obligation placed upon council members to 'vote', which appears in s 5.21.
3. The other offence provisions relevant to this appeal, being s 5.65(1) and s 5.67, both provided (at the relevant time) for imprisonment for two years and a fine of $10,000, which reinforces the importance of proper compliance by council members with these statutory obligations. Indeed, and for completeness, I note that, following the determination of this matter by the Magistrate, the legislature increased the financial penalties applicable to these provisions, to a maximum fine of $24,000.[77]

1. Section 5.21(2) creates an obligation on the part of council members to 'vote' when present at a council meeting.
2. The force and importance of that obligation was emphasised by Parliament in 2003/2004, through the introduction of s 5.21(5), which established that a failure to comply with the obligation was an offence.[78] In the second reading speech at the time, the relevant Minister stated:[79]

The Act currently states that councillors must vote at council meetings. However, there is no penalty provided for failing to do so. In recent times, a number of councillors appear to have not complied with this requirement, and the inclusion of a specific offence provision should assist in ensuring full compliance.

1. The amendment to the LGA (at that point in time) did not incorporate a specific maximum penalty applicable to a breach of s 5.21(2) and s 5.21(5), meaning that the general penalty in s 9.14 was engaged.
2. For the purposes of the present matter, the maximum applicable penalty for a breach of s 5.21(2) and s 5.21(5) was a fine of $5,000. That maximum general penalty has subsequently been increased to $10,000. Additionally, a specific maximum penalty has now been included in s 5.21(5), which is also $10,000.[80]
3. The term 'vote' is not defined in the LGA. In the context of this statutory regime, it should be taken to refer to the ordinary meaning of that term, namely the act of choosing to express a preference or opinion for or against a proposition.[81] The use of the term 'vote', in a textual sense, does not include to 'abstain', which means to refrain from casting a vote in the ordinary sense.[82] Moreover, to extend the term in this way would be antithetical to the obligation in s 5.21(2) and undermine the provision. It is to be recalled that the elected members of a council are to deliberate on matters before the council, and decide on those matters, at meetings held in accordance with the LGA, as contemplated by s 5.3(1A). The process of deciding on matters occurs through the obligation on council members to vote on the items at those meetings. In my view, therefore, the statutory obligation to 'vote' imposed by the legislation on a member of a council does not include a decision to 'abstain' from voting.
4. The statutory obligation that a member must vote, found in s 5.21(2), is not unqualified, though. The obligation established by that provision is expressly subject to s 5.67 of the LGA which is engaged where a member makes a disclosure under s 5.65. Section 5.67 specifically refers to a 'member who makes a disclosure under section 5.65'.
5. These provisions, that is s 5.65 and s 5.67, are found within div 6 pt 5, headed 'Disclosure of financial interests and gifts'. This regime establishes obligations on council members and committee members to make disclosures of certain interests, being:

(a) direct financial interests;

(b) indirect financial interests; and

(c) proximity interests.

1. The focus in the present proceedings is on the term 'financial interest'.
2. Section 5.65(1) requires that a member who has an interest in any matter to be discussed at a council meeting that will be attended by the member must disclose 'the nature of the interest', either in a written notice to the CEO before the meeting, or at the meeting immediately before the matter is discussed. In certain circumstances, the council member must also disclose the 'extent' of the interest: see s 5.68(1)(b)(i) and s 5.69(2)(a). In those circumstances, the term 'extent' includes 'the value and amount of the interest': see the definition of 'extent' in s 5.59.
3. Pausing at this point, it is thus evident that the legislative scheme permits an exception to the voting requirement, which is confined to circumstances in which a proper disclosure is made under the LGA, in the manner contemplated by s 5.60 and consistent with the definitions of the various concepts of 'interest' which are found in s 5.60A, s 5.60B, s 5.61 and s 5.62.
4. The disclosure is to be made at an anterior point in time to the matter being considered by the relevant council, as is apparent from the terms of s 5.65(1)(a) and s 5.65(1)(b), as well as from the requirements in s 5.66 which apply where a disclosure has been given to the CEO prior to the meeting. The CEO is required to cause the disclosure to be given to the person who is presiding at the meeting, and the person presiding at the meeting is to bring the notice and its contents to the attention of the persons present 'immediately before' the matters to which the disclosure relates are discussed.
5. Further, it is evident that the legislation, in the respects with which this appeal is concerned, has been drafted in a careful manner to articulate the specific circumstances in which members of a council (and others) must make proper disclosure of interests which may have an effect on the decisions being considered by the council. The legislation identifies, using specific definitions, the interests which a person must disclose, and identifies particular interests which need not be disclosed.
6. Section 5.67 explains the prohibitions on the member's ability to preside, to participate or to be present when the relevant matter is being discussed or deliberated upon. The prohibitions in s 5.67 are not absolute, as is apparent from the terms of s 5.68 and s 5.69 which detail the circumstances in which a disclosing member may nonetheless preside, be present or participate at the meeting when the matter in question arises for consideration.
7. There are thus two exceptions to the prohibition, found in s 5.68 and s 5.69. Only the former of these is relevant for present purposes. The latter provision, s 5.69, sets out a regime whereby a member may apply to the relevant Minister to allow him or her to 'participate in the part of the meeting, and any subsequent meeting, relating to the matter'. Further, s 5.69A permits the Minister to exempt a committee member (but not a council member) from the disclosure requirements.
8. The terms of s 5.68(1) are particularly relevant to the present appeal. The provision differentiates between two scenarios.
9. The first scenario is where the other members 'allow' the disclosing member to be 'present' during any discussion or decision making procedure relating to the matter, as distinct from presiding or participating in the meeting: s 5.68(1)(a). The statute thus distinguishes between the scenario where a disclosing member is permitted to be 'present' during the discussion or decision making procedure, and the scenario where the disclosing member is permitted to preside or participate.
10. The second scenario arises where the other members 'allow' the disclosing member to 'preside' at the meeting or to 'participate in discussions and the decision making procedure relating to the matter': s 5.68(1)(b). There are two noticeable features of the legislation which differ in this second scenario. The first of these features is that the other members may allow the disclosing member to preside or participate 'to the extent' they decide, indicating that limits may be placed on the decision that is made.[83] The second feature is found in the prerequisites in sub-pars (i) and (ii) to s 5.68(1)(b), which must be satisfied. I have set out that text earlier in these reasons, but it is convenient to repeat the statutory language:

(b) may allow, to the extent decided by those members, the disclosing member to preside at the meeting (if otherwise qualified to preside) or to participate in discussions and the decision making procedures relating to the matter if -

(i) the disclosing member also discloses the extent of the interest; and

(ii) those members decide that the interest -

(I) is so trivial or insignificant as to be unlikely to influence the disclosing member's conduct in relation to the matter; or

(II) is common to a significant number of electors or ratepayers.

1. The text of s 5.68(1)(b) includes the terms 'decided' and 'decide' in two locations, suggesting the existence of a requirement that a 'decision' must be reached by the other members. Similar language is not used in s 5.68(1)(a). That said, s 5.68(2), which has application to both scenarios in s 5.68(1), makes reference to 'a decision under this section' in the chapeau and refers to a 'decision' in par (b).
2. In my view, the language of the statute requires that a decision in some form must be reached by the other members, whether they are allowing the disclosing member to be present under s 5.68(1)(a) or whether they are allowing the disclosing member to preside or participate under s 5.68(1)(b). The text of the provision, in both s 5.68(1) and s 5.68(2), points to such a requirement.
3. Further, where s 5.68(1)(b) is sought to be engaged, as in the present case, the language employed in s 5.68(1)(b)(ii) makes it abundantly clear that a decision of the other members is required, and that decision must address one of the matters in (I) or (II) of the sub-paragraph.
4. The nature and context of this issue is important. Through this provision, the other members would be permitting a council member with a disclosed interest in the subject matter (such as a direct financial interest) to not only remain at the meeting, but to either preside or to participate in the meeting, which would necessarily extend to voting on the motion in question. The context strongly suggests that an identifiable decision must be made by the other members. The decision made by a council to permit this to occur must then be documented in the relevant minutes, as required by s 5.68(2), and in such a way as to expose the basis for the decision. The objectives of scrutiny and accountability in respect of the affairs of a local government would require nothing less, in my view.
5. This approach is reinforced when the terms of the second exception to the prohibition in s 5.67 are examined. Section 5.69 permits the Minister to allow a disclosing member to participate in a council meeting. The bases on which the Minister may allow this to occur are described in s 5.69(3). The decision of the Minister under this exception would need to be preceded by an application from the disclosing member, and then be properly documented to reflect the basis on which approval is given, as well as being recorded in the meeting minutes, as required by s 5.69(5).
6. It would follow from the foregoing that the use of the term 'allow' in s 5.68(1)(a) and (b)[84] does not carry with it an indication that the other members might passively permit the disclosing member to be present, to preside or to participate. Nor is it open to the disclosing member to elect for himself or herself whether to remain at the meeting, or to preside or participate. The legislation requires a decision to be made and places a responsibility on the other members in this regard to make an assessment by reference to the statutory criteria.
7. How is such a decision to be made? Ordinarily, the decision of a council will only have effect if made by a simple majority: s 5.20(1). If the votes are equally divided, the presiding member is to then cast a second vote: s 5.21(3). Section 5.68(1) would typically require a decision by the other members of the council, by way of a vote and by a simple majority.
8. I will now turn to address the specific grounds of appeal.

Disposition of the grounds of appeal Ground 1 - the form of the charges

1. This ground is directed at each of the three categories of the offences with which the appellant was charged. The appellant contends that the charges represented a 'misapplication and misinterpretation of the law'.[85]

1. As to the offences under s 5.21(2), the appellant submits that the convictions do not demonstrate a breach of s 5.21(5) 'as there was no noncompliance with the subsections', notes that the prosecutor did not reference s 5.21(5) in the closing submission at trial, and says he was not charged with not complying with s 5.21(2) or s 5.21(3) and therefore the charges should have instantly failed.[86]
2. The appellant emphasises in his submissions that s 5.21 must be read together with s 5.68 and s 5.69, which he says outline the circumstances in which an elected member of council may take part in meetings but not vote on council business.[87] The appellant submits:[88]

The Appellant voted on many matters across the five meetings for which he was charged, but not those where he had declared interests and the remaining elected Councillors approved him to remain, discuss and not vote on the items pursuant to s 5.68.

1. Further, the appellant submits that, in order to have established the offences at trial, the prosecution 'needed to prove beyond a reasonable doubt that the Appellant did not have the approval to remain in relevant meetings and take part pursuant to s 5.68 which it did not do, and there was no evidence to suggest this did not occur'.[89] I will address the appellant's arguments in relation to the operation of s 5.68 under Ground 4 below.
2. Allied to this, the appellant submits that he 'could not have voted on the relevant items even if he had tried since the remaining Councillors in the meeting did not give him the authority to vote, thus defeating the connotation 'failure' as described by the prosecution'.[90] I am not precisely sure what is intended by this submission, with respect.

1. In respect of the offence under s 5.67, the appellant submits that the charge does not describe a legislative breach performed by a person and says the elements referred to by the Magistrate were never in dispute but do not prove a breach of the provision.[91] The appellant points to a tension in the prosecution case, as follows:

[47] Notably, the prosecution's case for this charge directly contradicted its case for the first five charges where it had earlier contended that a specific box ticked on declaration of interest forms did not constitute a declaration of interest pursuant to s 5.65.

[48] Both propositions cannot be correct, and the Magistrate found each way in his findings in favour of the prosecution.

1. For this offence, the appellant submits the prosecutor was required to prove that the appellant did not have the approval to remain in the meeting and participate pursuant to s 5.68, which it did not do.

1. In respect of the offence under s 5.65, the appellant's submissions are difficult to follow. The appellant describes the term 'fail' in the charge as illiterate, refers to the absence of any reference to a meeting required by s 5.65, notes that the appellant was always 'at Council' for the duration of his term and 'this is not the same as a meeting', and describes the term 'as required' as being ambiguous.[92]
2. The appellant says it was not in dispute that he disclosed interests for the 20 July 2021 meeting and the charge against him was 'disproved from a literal standpoint'. Further, the appellant submits that it was not proven that a 'matter' was involved, the prosecution's case was that the appellant had additional interests which were not declared 'as required' on the say-so of an alleged complaint, and the term is 'vague and implies a third party can set its own unknown requirements' on the appellant at their discretion, which is not provided for in the legislation.[93]

1. There are only four points raised by the appellant which require express mention, in my view. The balance of the appellant's criticisms are without merit and can comfortably be put to one side, or addressed when considering the other grounds of appeal.
2. First, to the extent to which this ground asserts that the charges laid against the appellant were commenced incorrectly and failed to charge offences known to law, the ground is without merit. I have earlier in these reasons identified the form of the charges, all of which disclose the relevant offence and were supported by particulars of the instances of breach. There was no contest at trial that the charges were validly laid; although there was some indication from the appellant's counsel that he intended to pursue this line of defence at trial, he did not do so.[94]
3. Second, the appellant's reliance on s 5.68 and s 5.69 in response to the offences of failing to vote were matters expressly addressed (and rejected) by the Magistrate. I have addressed the appellant's submissions on this issue when dealing with Ground 4 below.
4. Third, the appellant's submission that there is a contradiction in the prosecution cases in support of the breaches of s 5.21 and the breach of s 5.65 is more apparent than real, in my view. The prosecution's case in respect of s 5.21 was that the declarations of an interest under the Code of Conduct were not intended by the appellant to be disclosures of an interest for the purposes of the LGA, and were not in substance and in fact such disclosures. I have addressed this further below when addressing Ground 2.
5. In respect of the breach of s 5.67, the evidence disclosed that the appellant has made a specific declaration on 22 June 2021 referring to his interest under the Code of Conduct (see Attachment D), but which also stated that the appellant was 'the Councillor seeking legal representation under [the Legal Representation Policy]'. That was sufficient, when taken with the other available evidence, to enable the Magistrate to conclude that the appellant had, in substance, disclosed an interest under s 5.65, within the meaning of the chapeau to s 5.67. I have addressed this further under Ground 7 below.
6. There was no contradiction in the approaches taken by the prosecution, which the Magistrate accepted.
7. Fourth, as to the charge under s 5.65, concerning the meeting of the Council on 20 July 2021, it was alleged the appellant failed to disclose the 'financial interest' he had in the Rescission Motion. It is true that the appellant disclosed an interest in writing in advance of the meeting. It may also be accepted that, given the course of events at the preceding meeting, and the nature of the motion being put on 20 July 2021, that those present at the meeting were aware the appellant was the councillor who was the subject of the motion. There was no secret in this regard.
8. However, none of this meets the essence of the charge against the appellant, namely that he failed to disclose the relevant interest he held, being a 'financial interest' in a written notice before the meeting or at the meeting itself. The written disclosure (Attachment F) and the disclosure recorded in the minutes on 20 July 2021 (Exhibit 1C, pg 102) do not amount to proper disclosures of his interest under the LGA. These discloses can be compared to the disclosure made on 22 June 2021 (Attachment D) which expressly refers to the fact that the appellant is 'the Councillor seeking legal representation' under the applicable policy.
9. Accordingly, leave to appeal on this ground should be refused.

Ground 2 - the appellant's declarations of interests

1. This ground asserts that the Magistrate made a finding that the appellant, as an elected member of the Council, declared an interest not pursuant to law, but 'pursuant to a non-legal method'. The appellant says this is an error of law and an error of fact.
2. Neither the respondent nor I have been able to identify a finding in these precise terms.
3. In substance, the ground is directed at the finding made by the Magistrate that the declarations of interest completed by the appellant were not made under the LGA.[95] In developing this point, the appellant refers to the terms and structure of the legislation, the asserted lack of clarity in the prosecution case as to the particular Code of Conduct in question, the state of the evidence as to the meaning and effect of the Declaration of Interest Forms, and the asserted misunderstandings which resulted from the VROI in which the appellant participated.
4. The appellant describes his sworn evidence at trial as follows:[96]

(a) all interests he declared were ultimately financial in nature and that he correctly declared these interests;

(b) they were financial interests because one or more administrative public officers had threatened him with financial detriments and losses over [Council] matters, including how he might vote. They had also unlawfully withheld relevant documents from the [Council's] governing body affecting its ability to govern free from bias;

(c) the remaining Councillors approved the Appellant to participate in the meeting by remaining and discussing if he so chose, but not to vote;

(d) these approvals are printed in the relevant exhibits and were identified for the prosecution by the defence.

1. To be clear, I do not accept this is a fair summary of the evidence given by the appellant at trial.
2. The appellant submits that 'it remains possible' that there are reasons for a council member ticking certain boxes on the forms, referring to potential 'legal requirements, not uncovered in these proceedings', and submitted that the Council 'regards this box to signify that the declaring elected Councillor is concurrently declaring pursuant to s 5.65 and another method (i.e. not 'only') and therefore still ultimately declaring an interest pursuant to the Act'.[97]
3. The prosecution case at trial was that the appellant had, in respect of the five meetings in question, completed and given to the Council several Declaration of Interest Forms. The substance of the disclosure made by the appellant was that he was declaring an interest under the Code of Conduct because he did not possess all the information he required to make an informed decision.
4. In my view, the appellant's contention that the Magistrate erred in law or in fact in concluding that the appellant was not, in respect of any of the particular motions put at the meetings, a member who had made a disclosure under s 5.65, should be rejected. The Magistrate, having correctly apprehended the structure of the legislation, found that the appellant did not intend to disclose a financial or other disclosable interest under the LGA, and he in fact made no such disclosure. Those findings are well supported on the evidence. The Magistrate in effect rejected the evidence of the appellant to the contrary.
5. The following points explain why this ground of appeal is without merit, together with the earlier explanation in these reasons as to the proper construction of the provisions of the LGA.
6. First, the legislative scheme permits an exception to the voting requirement, which is confined to the circumstances in which a disclosure is made under the LGA, as required under s 5.65 and in the manner contemplated by s 5.60. These provisions indicate that disclosure is required where there is a direct or indirect financial interest, or a proximity interest, in the matter. The provisions do not extend to circumstances of impartiality under the repealed Local Government (Rules of Conduct) Regulations 2007 (WA) or the Model Code of Conduct Regulations, nor to any individual council's code of conduct.
7. Second, none of the relevant disclosures made by the appellant in any of the Declaration of Interest Forms referred to any interest on his part other than an 'Interest under the Code of Conduct'. Indeed, in respect of the meetings on 15 June 2021, 22 June 2021, 17 August 2021 and 21 September 2021, the appellant formally admitted at trial he had not declared 'any other interests in the items on the agenda' for those meetings (as appears at [87] to [90] above). In each of the cases in which a breach of s 5.21(2) was alleged, the appellant had gone further and described the nature and extent of the interest as being attributable to a lack of information on his part.
8. This is, unmistakably in my view, a disclosure of something other than a financial interest or a proximity interest. In substance, the appellant was doing little more than abstaining from voting in his capacity as a council member. That is antithetical to the obligation to 'vote' in s 5.21(2).
9. Third, and allied to the preceding point, it was always open to the appellant to tick the box on the Declaration of Interest Forms concerning a financial interest (or a indirect financial interest) or a proximity interest. He did not do so.
10. Fourth, there was no credible evidence before the Magistrate to the effect that the appellant in fact had a financial interest or proximity interest in respect of any of the particular motions which were the subject of the charges under s 5.21(2).
11. Fifth, to the extent to which the appellant now points to gaps in the evidence, or the possibility of further evidence which might have assisted him, the submissions are simply speculative and do not advance his case. It was open to the appellant, who was legally represented at trial, to adduce such further evidence as he wished to support an available defence at law. As I have earlier said, I do not consider the trial was in any sense unfair to the appellant, considering the notice he was given of the charges and the evidence to be adduced, the fact the trial was held over a period of some months, the fact he was represented by counsel, and the fact his counsel had a fulsome opportunity to cross-examine the witnesses called by the prosecution.
12. Sixth, once this point is reached, there can be little doubt that the appellant was correctly found by the Magistrate to have failed to 'vote' in respect of the identified resolutions. In substance, the appellant abstained from voting, as recorded in the certified copies of the minutes, which, in these circumstances, is a breach of s 5.21(2).
13. Accordingly, leave to appeal on this ground should be refused.

Ground 3 - whether the court exceeded its jurisdiction

1. The appellant submits that the Magistrate made several findings regarding the 'meaning' of the processes of the Council, its documents and its decisions, which he contends goes 'beyond the jurisdiction of the court'.[98] The appellant submits that the findings of the court do not alter the local government's position on 'its own processes, decisions, approvals, documents etc'.[99]
2. A long list of the findings which the appellant wishes to impugn on this basis are detailed at AS [105], although these do not accurately reflect the reasons of the Magistrate. The list includes the following:

(a) the meaning of the Council's forms and their content;

(b) the meaning of entries contained in its minutes;

(c) that the Council's approvals under s 5.68 were not legitimate;

(d) only the Executive Manager Governance and the Governance Coordinator are the persons to which written confirmation must be provided according to the local law;

(e) that a 'rescission motion' exists on the 'say-so of a former employee';

(f) the meaning of the Council's own policies, specifically the Legal Representation Policy; and

(g) that the public officers of the Council are above the local government's laws, procedures, policies, and they can override the governing body at their own discretion.

1. The appellant further submits that unauthorised persons cannot speak on behalf of the local government and the elected Mayor is the official spokesperson for the body.[100] The appellant criticises the prosecution, in effect, on the basis that only one person from this particular Council attended the trial to give evidence, namely the appellant.[101]
2. I must say it is difficult to follow the thrust of this appeal ground.
3. As to the number and nature of witnesses called at trial, the respondent correctly submits that it was open to the appellant to call additional witnesses at trial, including by compelling their attendance through witness summonses, in order to support his case at trial. The appellant elected, in the end, not to call any other current or former council members.[102]
4. The respondent correctly submits that the Magistrate was entitled to make findings as to the significance and import of the evidence before the court, including where that evidence originated from the particular local government itself.[103] Indeed, in order to undertake the task of determining whether the charges against the appellant were established or not, to the requisite standard, the Magistrate was required to consider the proper legal effect of the statutory provisions, the significance of the steps taken by the Council and its members, as well as by the appellant, and to assess the cogency and relevance of the evidence presented by the parties. There is nothing surprising about the approach which was taken by the court at first instance.
5. The appeal ground is misconceived in my view and leave to appeal on this ground should be refused.
6. In my view, the only point identified by the appellant which merits some further consideration is the reference to the validity of the Rescission Motion. I have addressed this point when dealing with Ground 6 below.

1. The appellant challenges the Magistrate's conclusions concerning the application of s 5.68, and asserts an error of law and an error of fact.
2. The error of law is said to be the finding that the other elected council members 'did not vote when making its approvals'.[104] The appellant emphasises that s 5.68 states that other members 'may allow' the disclosing member to be present, for example: s 5.68(1)(a). The appellant submits that an approval does not require a vote to be conducted for the purposes of s 5.68.[105]
3. The error of fact is said to be the finding that the other elected council members 'did not properly consider these declarations when they gave their approval'.[106] The appellant submits that the issue as to how the Council conducts its approvals under s 5.68 'was never presented during proceedings nor put to any witness'.[107] The appellant says that, among other matters, he gave evidence at trial that the Council, consisting of its elected members present at the relevant meetings, 'did give its collective approval for [the appellant] to participate in meetings in various ways pursuant to s 5.68'.[108]
4. The application of s 5.68(1), in the context of the charge under s 5.67(1), requires some explication before the findings of the Magistrate are analysed. It should be remembered that s 5.67 prohibits a member who has made a disclosure relating to an interest in a matter under s 5.65 from presiding at the meeting relating to the matter, or from participating in, or being present during, any discussion or decision making procedure relating to the matter. The exceptions to this are found in s 5.68 and s 5.69. Earlier in these reasons, I have explained how I consider these provisions operate. When the legislative regime is properly understood, it is apparent the appellant's challenge to the Magistrate's conclusions are without merit and should be rejected. The following points explain why this is so.
5. First, the exception in s 5.68(1) only has relevance in the context of the prohibition in s 5.67, and the prohibition only arises where a member has made a disclosure under s 5.65. Thus, given the Magistrate's conclusion that the appellant made no relevant disclosure under the LGA in respect of the matters which were the subject of the charges under s 5.21(2), no question of the application of s 5.68(1) arises at all.
6. Second, the operation of s 5.68(1) arises in the present matter only in the context of the Legal Representation Motion, which formed part of the agenda at the council meeting on 22 June 2021. This is because this was the only instance in which the Magistrate found the appellant had declared a financial interest under the LGA, such that the appellant was then a member who had made a disclosure under s 5.65. The agenda item directly concerned the appellant and he had an undoubted direct financial interest in the outcome of the item, as I have explained under Ground 7 below.
7. Third, the Magistrate was correct to conclude that a decision of the other members of the Council was required, at the council meeting on 22 June 2021, as to whether to allow the appellant to be present or to participate in the matter, being the Legal Representation Motion. As the record of the meeting reveals, and it is not in dispute, the appellant in fact voted on the motion. In the language of the statute, he 'participated' in the matter in respect of which he had a 'direct financial interest'.
8. As I have earlier explained, the statute, properly understood, requires that the other members must vote on whether the disclosing member may preside or participate. The audio record of the proceedings, contained in Exhibit 5, which the Magistrate plainly preferred over the ambiguous notation in the minutes, reveals that there was no decision or vote by the other members for the purposes of s 5.68(1). The appellant was present during the discussion between the members as to whether he would be permitted to participate, so there is no doubt the appellant was well aware that no decision was made by the members.
9. The certified copy of the confirmed minutes of this meeting are evidence of the events which occurred at the meeting, but are not conclusive in this regard. It was permissible for the Magistrate to examine the audio record, and other evidence including the evidence of the Governance Coordinator as to the practice of the Council, to assess the issue.
10. The audio record evidences a discussion between the other members, as well as the appellant, during which one council member correctly indicated that a vote was required for the purposes of s 5.68(1) as to whether the appellant could participate. That council member attempted to explain the issue to the other members of the Council, and to the appellant, as follows:[109]

What I am trying to clarify though is this - is a declaration of an interest under 5.65 of the Act, then having made that declaration of interest, the councillor can elect to stay, discuss and vote. But that is not an election that is solely made by the councillor. My understanding that under 5.68 that determination is then made by the council, that is we determine whether [the appellant] should stay, discuss and vote, or whether [the appellant] is not entitled to stay.

1. The confusion amongst the members arose because the appellant had made a disclosure purportedly under the Code of Conduct - although he had also indicated he was the council member seeking the legal representation (Exhibit 10 - Attachment D). As a result, some of the council members present, including the Mayor, approached the matter on the basis that it was open to the appellant to elect to stay or not, and to participate. The appellant himself made comments at the meeting which were supportive of this approach. That approach simply does not accord with the legislative scheme, once it is concluded that the appellant in fact had a financial interest in the matter in question.
2. There was thus no vote or decision by the Council to permit the appellant to participate for the purposes of s 5.68(1)(b). It is not open to a disclosing member to elect themselves to stay and participate in a matter in respect of which they have a direct financial interest, and it is insufficient, to demonstrate the existence of the exception in s 5.68(1)(b) in order to circumvent the prohibition in s 5.67, for a disclosing member to assert that the other members of the council passively permitted him or her to remain and vote. As the Magistrate observed more than once in his reasons, the members of the council of a local government are expected to understand their obligations under the legislation.
3. Fourth, in any event, it would not have been open to the other members of the Council to allow the appellant to participate in the matter in question given the absence of any basis upon which those members could reasonably have concluded that the requirements of (I) or (II) in s 5.68(1)(b)(ii) were satisfied.
4. That is, it was not open to conclude that the direct financial interest of the appellant in the outcome of the matter (by which he had sought payment or a benefit of up to $10,000 from the Council) was so trivial or insignificant as to be unlikely to influence his conduct in relation to the matter, or that the issue was so common to a significant number of electors or ratepayers. Had all the members of the Council turned their mind to this issue, rather than adopt the approach pressed upon them by the appellant, they would undoubtedly have concluded there was no basis upon which the appellant could be allowed to participate in the meeting in relation to this particular agenda item (and to vote on the motion).
5. I have earlier set out the findings of the Magistrate on this issue, and his overall conclusion that he was satisfied beyond reasonable doubt that the appellant was not allowed by the other members of council to vote or participate in the meeting pursuant to the procedure in s 5.68(1). His Honour found that, having regard to the minutes of the meeting on 22 June 2021 and the audio recording of the meeting, as well as the evidence of the Governance Coordinator, that no process was undertaken by the other members in this regard. These findings were well supported on the evidence and accord, in my view, with the statutory regime.
6. In light of the foregoing, I would allow leave to appeal on this ground of appeal but I would dismiss the ground.

Ground 5 - the finding the appellant 'was to attend the meeting'

1. By this ground, the appellant contends that the finding by the Magistrate that the Appellant 'was to attend the meeting' is an error of law and an error of fact. The submissions filed by the appellant indicate this ground is directed to the contravention of s 5.65(1) on 20 July 2021.
2. In respect of this charge, the Magistrate identified the relevant elements which he said included that the 'accused was to attend the council meeting'.[110] The reference to this element of the charge draws on the language of s 5.65(1) which refers to a member who has an interest in any matter to be discussed at a council or committee meeting that 'will be attended by the member'.
3. The appellant's submissions on appeal focus on whether there was a legislative requirement for the member to attend the specific meeting in question.[111] The appellant submits that:[112]

There is no legislative requirement for an elected Councillor to attend any specific meeting, and it is common for elected Councillors to not be in attendance or leave these meetings, a fact evidenced by the prosecution's exhibits and witnesses.

1. The appellant's challenge is without merit.
2. As the respondent submits, the relevant text within s 5.65(1) is expressed in the future passive tense.[113] The language identifies a requirement to disclose an interest when the member has a future intention to attend a meeting of the council. That was undoubtedly the case on the evidence at trial and, indeed, the appellant in fact attended that meeting. It was not necessary for the respondent to demonstrate, or for the Magistrate to be satisfied, that the appellant was legally required to attend the meeting in any relevant sense.
3. The Magistrate thus correctly apprehended the nature of the charge and the relevant element which the respondent was required to demonstrate to the requisite standard.
4. The ground has no reasonable prospects of success in my view and leave to appeal should be refused.

1. This ground is directed to the Rescission Motion which was put at the meeting of the Council on 20 July 2021. The motion was aimed at rescinding the approval which had been granted to the appellant at the previous meeting of the Council, under the Legal Representation Policy.
2. The appellant submitted a Declaration of Interest Form in respect of this agenda item, dated 20 July 2021 (see Attachment F). In that form, the appellant declared an interest under the Code of Conduct and described the nature and extent of the interest by reference to his obligations under the LGA and the regulations, and asserted that voting on the item would breach the Council's Meeting Procedures Local Law 2017.
3. It is apparent from the evidence at trial that the appellant had exchanged emails with other members of the Council, and the acting chief executive officer, in which he asserted the Rescission Motion was invalid.[114]
4. The appellant stated in the emails that voting on the motion would 'spell a breach of section 18.4(2)(a) of the Meeting Procedures Local Law', because action had already been taken to implement the decision.[115] The appellant further explained in his communications that, following the approval of the Legal Representation Motion on 22 June 2021, he had consulted a legal practitioner and thus the decision made by the Council (granting the appellant approval for legal assistance) had been 'implemented'.
5. The appellant maintains on appeal the Rescission Motion was invalid by reason of non-compliance with the applicable Meeting Procedures Local Law 2017, specifically cl 18.3 and cl 18.4 thereof.[116] According to the appellant, the Meeting Procedures Local Law 2017 provide that only a member of the Council can move a revocation motion and the member must notify the head administrative officer before doing so, and the notification must comply with certain criteria (relying on cl 18.3). The appellant says the Rescission Motion failed to satisfy any of these matters, although the primary focus was on compliance with cl 18.4.[117]
6. Further, as noted above, the appellant submits the decision had already been implemented and cl 18.4 thus stood in the way of the Rescission Motion. Clause 18.4 relevantly provided at the time (I note the provision contains some infelicities in its drafting):

18.4 Implementation of a decision

(1) No steps are to be taken to implement or give effect to a decision if -

(a) there is a valid notice of revocation motion that has the support of Members required by the Regulations; and

(b) the notice of revocation motion was received before any action was taken to implement the decision.

(2) That the Council or a committee shall not vote on a motion to revoke or change a decision of the Council or committee whether the motion of revocation or change is moved with or without notice, if at the time the motion is moved or notice is given -

(a) action has been taken to implement the decision; or

(b) where the decision concerns the issue of an approval or the authorisation of a licence, permit or certificate [and the decision] has been put into effect in writing to the applicant or the applicant's agent by an employee of the local government authorised by CEO to do so; without having considered a statement of impact prepared by or at the direction of the CEO of the legal and financial consequences of the proposed revocation or change.

1. Further, the appellant points to discrepancies in the evidence as to when the Rescission Motion was received by the Council and to the vagueness of the evidence given by the Executive Governance Manager on the issue at trial.[118]
2. The appellant ultimately submits that:

[170] Ultimately, it was not proved by the prosecution that section 18.4(2)(a) had not been met; therefore, there was no "rescission motion"; therefore, the prosecution was not able to prove this element to the charge; therefore, the Appellant did not breach s 5.65.

[171] The Appellant gave evidence that:

(a) he did not breach the legislation;

(b) there was no "rescission motion"; and

(c) the [Council] implemented [the Legal Representation Motion].

[172] There was no evidence to the contrary.

1. The Magistrate addressed this issue by assuming the Rescission Motion was valid, observing that there was no evidence before him that any court vested with appropriate jurisdiction had declared the proceedings relating to, or the decision on, the rescission motion to be invalid in any sense.[119] That is, the Magistrate concluded he was bound to assume the validity of the relevant motion.
2. Further, the Magistrate expressed doubts as to whether action had in fact been taken to implement the decision made by the Council on 22 June 2021.[120] However, the Magistrate rested his decision on the assumption as to validity to which I have referred above.
3. This is an issue on which I sought supplementary submissions from the parties following the appeal. The respondent filed detailed submissions on 28 November 2025.
4. The respondent submits that the authorities establish, in a criminal case where a collateral challenge is brought to impugn an administrative decision that forms an element of the prosecution case, that challenge should be conducted as a voir dire in the criminal proceeding itself.[121] In support of that proposition, the respondent principally cited Selby v Pennings,[122] Re Lawrence; Ex parte Goldbar Holdings Pty Ltd,[123] and Australian Crime Commission v Marrapodi,[124] among other authorities.[125]
5. The submission advanced by the respondent should be accepted, and accords with authority in this State. In general terms, it could not have been intended that separate judicial proceedings were required in cases where a valid administrative act was an element of the offence charged, or a condition of the availability of the power on which the offence depended.[126] The particular administrative act in question, and the applicable statutory regime, will of course require close examination when a collateral challenge is raised in criminal proceedings. As the respondent further submits, the validity of certain administrative acts may not be justiciable.
6. In general terms, it may therefore be said that the trial Magistrate ought not to have approached the issue by applying the presumption of regularity. The validity of the Rescission Motion having been put in issue by the appellant at trial, it was necessary for that issue to be closely examined. The prosecution would bear the onus on that issue.[127]
7. The respondent, in her supplementary submissions, accepts as much. Nonetheless, the respondent submits the appeal ground should be rejected for three reasons. I will outline each of them below.
8. First, the respondent submits that a collateral challenge to the validity of the impugned motion was not a justiciable controversy.[128] The respondent points to the absence of any internal or external mechanisms within the Meeting Procedures Local Law 2017 for dispute or for review of adherence to meeting procedures. The absence of provisions relating to review, and the ability for the operation of the Meeting Procedures Local Law 2017 to be suspended upon a motion moved, seconded and carried by a simple majority, strongly suggests, according to the respondent, that decisions made under and about the Meeting Procedures Local Law 2017 are to be made solely within and by the Council or local government.
9. Accordingly, the respondent submits that, although not incapable of interrogation in a factual sense, a challenge to the validity of the impugned motion was likely not justiciable, which tends to support a finding that the Magistrate did not err in finding himself without jurisdiction to address that issue.
10. Second, the respondent contended that this court should nonetheless dismiss the appeal in accordance with s 14(2) of the CAA on the basis that no substantial miscarriage of justice has occurred.[129] In essence, the respondent draws attention to the evidence at trial that the relevant Meeting Procedures Local Law 2017which the appellant contends had been breached, had been suspended pursuant to cl 19.3(1) thereof.
11. The minutes of the Council meeting on 20 July 2021 record a resolution to this effect being carried at 8.28pm, by 9 votes to 2 votes.[130] The stated reason for the resolution, recorded in the minutes, was to 'ensure that there is procedural capacity to deal with the Rescission Motion'.
12. The respondent submits that, in suspending the application of cl 18.4, the Council avoided the procedural invalidity in voting on the impugned motion that might have flowed, even if the appellant had taken any requisite action to implement the previous decision.
13. Third, the respondent submits the existence of a valid motion was not an element of the relevant offence under s 5.65(1). On this basis, it is contended that the appellant could not have succeeded in defending the charge by means of a collateral challenge, and even if the Magistrate erred in not determining the issue, there has been no substantial miscarriage of justice and the ground of appeal should be dismissed.
14. The respondent develops this submission in the following way:

(a) In each of Selby v Pennings and Re Lawrence; Ex parte Goldbar Holdings Pty Ltd, the collateral challenge was to the validity of an otherwise reviewable administrative decision, the existence and requirements of which founded an element of the offence with which the relevant accused had been charged.

(b) The present case is said to be distinguishable from those cases because s 5.65(1) is not founded on the existence of any valid meeting procedure as an element of the charge.

(c) An 'interest in a matter' is defined by s 5.60, s 5.60A and s 5.60B, and a 'matter' within the meaning of s 5.65(1) is a reference to the substantive subject matter of a 'thing, affair or business' to be discussed at a council meeting. Motions are the procedural method by which matters are brought before, and dealt with by, councils, or at least a majority of them are dealt with this way.

(d) Parliament has provided a statutory defence in s 5.65(2), but it does not relate to a member's perceived validity or otherwise of the particular matter.

(e) The authorities to which I have referred above will generally bind a Magistrate who is adjudicating a criminal charge to determine collateral challenges to the validity of administrative decisions that constitute or found an element of the charge. However, in the present case, the respondent submits that the validity or otherwise of the impugned motion did not provide the foundation for any element of the offence.

(f) The substantive matter captured by s 5.65(1) was the proposition as to whether or not the Council should vote to revoke its previous decision to provide financial assistance to the appellant for legal costs in a State Administrative Tribunal matter. The appellant undoubtedly had prior knowledge of the matter (as is apparent from the emails forming Exhibit 7), and did in fact declare non-financial interests, as can be seen from the Declaration of Interest Form dated 20 July 2021 (Attachment F).

(g) Accordingly, the respondent submits that, even if the Magistrate had found that the matter was brought before the Council by a revocation motion procedurally other than in accordance with the Meeting Procedures Local Law 2017, and action had been taken to implement the previous decision, and the Council did not suspend the Meeting Procedures Local Law 2017, and the Council voted on the motion in breach of cl 18.4(2), none of which the respondent concedes, the appellant would still have been committing an offence by not declaring his substantive financial interest in the substantive matter concerning the funding of legal services to him.

(h) The respondent emphasises that the Meeting Procedures Local Law 2017 operates in a different field to the offence provision and the former does not qualify the latter.

1. In my view, this ground of appeal can be addressed by reference to the second point developed by the respondent, without reaching a final determination in relation to the first or third points.
2. The second point advanced by the respondent provides a cogent basis to conclude that the Magistrate's decision to assume the validity of the Rescission Motion did not occasion a substantial miscarriage of justice. That is because there was evidence before the court at first instance to the effect the Council specifically addressed the potential procedural invalidity issue by passing a procedural motion, put by a Council member, that the operation of cl 18.4 of the Meeting Procedures Local Law 2017 be suspended. The Council had power to pass such a resolution under cl 19.3(1). The minutes of the meeting record that procedural motion being passed. I have watched the video record of the meeting (which forms part of Exhibit 5) which evidences the lengthy discussion on the issue and the passing of the resolution to suspend the operation of cl 18.4. There is some indication by a member of Council that the procedural motion, if passed, would not have retrospective effect, but I consider that misunderstands the effect of cl 19.3(1) of the Meeting Procedures Local Law 2017.
3. In adopting the approach it did, the Council sensibly avoided the procedural invalidity which might have resulted from a vote on the Rescission Motion, had it been accepted that action had been taken to implement the decision made on 22 June 2021.
4. In my view, leave to appeal on this ground should be granted, but I would dismiss the ground pursuant to s 14(2) of the CAA.

1. By this ground, the appellant contends that the Magistrate found he had a 'financial interest' on the basis of the 'legal threat' made by the Executive Governance Manager, which he asserts is an error of law and of fact.
2. This ground is predominantly directed to the meeting of the Council on 22 June 2021, the Declaration of Interest Form dated 22 June 2021 concerning the Legal Representation Motion (Attachment D), and the finding that the appellant had a 'financial interest' in that motion, yet the appellant participated in the discussion or decision making procedure relating to the matter. This concerns the charge under s 5.67.
3. The ground is also relevant to the meeting of the Council on 20 July 2021 and the Declaration of Interest Form dated 20 July 2021 concerning the Rescission Motion (Attachment F), which forms the basis of the charge under s 5.65(1).
4. As earlier noted, the Magistrate found the appellant had a 'financial interest' in the motion before the Council concerning the approval of a contribution towards his legal fees, being the Legal Representation Motion.[131]
5. The Magistrate recorded that disclosable interests under the LGA were either a direct or indirect 'financial interest' in a matter, or a 'proximity interest' in a matter, having regard to s 5.60. The Magistrate then made reference to the definition of 'financial interest' in s 5.60A, the terms of which I have earlier set out.
6. The legislation defines a 'financial interest' by reference to whether 'it is reasonable to expect that the matter will' result in a 'financial gain, loss, benefit or detriment' for the person in question.
7. The Magistrate concluded as follows:[132]

I have little difficulty in finding that the accused had a financial interest in the resolution before the council concerning the approval for a contribution towards his legal fees. If approved, at very least the resolution would lead to the accused receiving a financial benefit. If lost, the resolution would result in the accused suffering a financial detriment. I find the accused did have a financial interest under the Act that he was required to disclose.

1. Later in his reasons, when addressing the motion to rescind the appellant's legal assistance which was considered at the meeting of the Council on 20 July 2021, the Magistrate found:[133]

The motion to rescind the accused's legal assistance was clearly, in my view, a matter in which the accused had a financial interest according to the broad definition of financial interest under the Act that I've read from. The outcome of the motion would resolve in either a financial benefit or gain for the accused, that much in my view is plain.

The accused has, however, also argued that his interest in the motion was in a category of interest that pursuant to section 5.63 of the Act was not required to be disclosed. More specifically, he argues that the interest he had in the motion related to, and I quote, 'A reimbursement of an expense under section 5.63(1)(c)(i)'. Now, it's somewhat difficult to see how continuing or not continuing to make a contribution towards a member's legal expenses could be categorised as reimbursement of an expense.

Clearly, if the motion was passed, there could be no suggestion of any reimbursement to the accused. At any rate, under s 5.63(1)(c)(i), only certain reimbursable expenses prescribed under the Act are not required to be disclosed. I've been through those categories carefully and, in my view, none of those categories of expenses apply in this case. ... So basically, that is my explanation for my being satisfied beyond reasonable doubt that the accused did have an interest to disclose.

1. The Magistrate's conclusions in this regard are undoubtedly correct.
2. The appellant had a financial interest in the motions, of a direct nature, given the effect of the resolutions was that he would either receive or not receive a financial benefit from the Council in the form of a payment of money, either to him or to his solicitor, or an obligation to make such a payment. It was 'reasonable to expect' that the resolution would result in financial gain or financial benefit, or a financial loss or financial detriment, depending on the outcome.
3. Whether there was in fact an actual expense already incurred for legal fees or not, or whether those fees had been paid or not, is irrelevant to the characterisation of the interest under the LGA in this regard. The appellant's submissions to the contrary should be rejected.[134]
4. This conclusion was unaffected by the factual circumstances referred to by the appellant concerning the Legal Representation Policy of the Council, which was Exhibit 4, which the appellant has explored in his submissions on appeal.[135] The question for the court was whether the statutory definition was engaged at the relevant time, such that the appellant had an 'interest in a matter' for the purposes of the legislation which he was obliged to disclose under s 5.65(1).
5. As to the possible application of s 5.63, which identifies those interests which need not be disclosed by a council member, the Magistrate concluded that none of the circumstances described in that provision had application.[136] That finding was supported on the evidence. The prosecution's closing submissions at trial addressed each of the circumstances in s 5.63, by reference to the prescribed regulations in the Local Government (Administration) Regulations 1996 (WA). As set out in those submissions, the scenario in which a council member is seeking payment of or contribution to his or her legal expenses is not an identified circumstance regarded by the legislature as falling outside the disclosable interest regime.[137]
6. The ground has no reasonable prospects of success in my view and leave to appeal should be refused.

Ground 8 - the evidence of the Executive Governance Manager

1. By this ground, the appellant asserts that a finding was made by the Magistrate that the Executive Governance Manager had 'oversight of all governance matters', and this finding amounted to an error of law.
2. The ground is misconceived.
3. The Magistrate's description of the evidence of the Executive Governance Manager was consistent with the evidence and not challenged in cross-examination. The point advanced by the appellant, that councils under the LGA are run by elected councillors and no individual can run or oversee a local government, relying on s 2.6 and s 2.7,[138] is beside the point and does not exclude the role of those additional persons within a council who provide oversight on governance matters.
4. Section 2.6 and s 2.7 relevantly provide:

2.6. Local governments to be run by elected councils

(1) Each local government is to have an elected council as its governing body.

(2) The offices on the council of the local government of a city or town are those of the mayor, the deputy mayor and the councillors.

(3) The offices on the council of the local government of a shire are those of the president, the deputy president and the councillors.

...

2.7. Role of council

(1) The council governs the local government's affairs and, as the local government's governing body, is responsible for the performance of the local government's functions.

(2) The council's governing role includes the following -

(a) overseeing the allocation of the local government's finances and resources;

(b) determining the local government's policies;

(c) planning strategically for the future of the district;

(d) determining the services and facilities to be provided by the local government in the district;

(e) selecting the CEO and reviewing the CEO's performance;

(f) providing strategic direction to the CEO.

(3) For the purpose of ensuring proper governance of the local government's affairs, the council must have regard to the following principles -

(a) the council's governing role is separate from the CEO's executive role as described in section 5.41;

(b) it is important that the council respects that separation.

1. The evidence in this regard did not, in any event, materially contribute to the Magistrate's pathway of reasoning to find the charges were proven.
2. Accordingly, the challenge on appeal to the description of the evidence of the Executive Governance Manager does not assist the appellant, even if the description was inaccurate, which it is not.
3. This ground has no prospects of success and leave to appeal on this ground should be refused.

Ground 9 - the evidence of the Governance Coordinator

1. By this ground, the appellant asserts that a finding was made by the Magistrate that the Governance Coordinator 'was responsible for running the council and committee meetings and public forums', and this finding amounted to an error of law.
2. The ground is similar in nature to the previous ground. It is similarly misconceived.
3. The appellant focuses on the point, irrelevant to the determination of the charges against him, that it is not lawfully possible for the governance task to be delegated to non-elected persons within a council. The appellant places reliance on s 2.8(1)(c) in this regard, which provides that it is the mayor or president who 'preside at meetings of the council, ensuring that meetings are orderly and held in accordance with this Act'. This contention goes nowhere and does not undermine the basis on which the charges were found to be established at trial.
4. The appellant submitted that his legal counsel demonstrated at trial that the sworn evidence of the Governance Coordinator conflicted with the documentary exhibits which were tendered, which he emphasised on the appeal.[139] The difficulty for the appellant is that none of these matters, if established, would materially undermine the evidence which supported the charges against him, and which the Magistrate found to be established.
5. I accept the respondent's submission that the contention advanced by the appellant by Ground 9 holds no importance to the convictions, which were fundamentally based on the evidence concerning the conduct of the appellant at the meetings in question and the Declaration of Interest Forms he completed.[140]

Ground 10 - the evidence of the Senior Investigator

1. By this ground, the appellant contends the Magistrate found that the appellant had agreed with a question asked of him by Mr Bertoli during the VROI, and this finding constituted an error of fact. The appellant also raises a broader contention in his written submissions, to the effect the VROI was inadmissible and should not have been admitted into evidence at trial.[141]
2. The Magistrate made specific reference to the VROI in his reasons, and identified the question put to the appellant by the Senior Investigator concerning the wording of the Declaration of Interest Forms. I have referred to the Magistrate's reasons at [110] above.
3. The evidence discloses that the appellant responded 'yes' to the question asked of him by the Senior Investigator, that he had declared an interest under the Code of Conduct, and not under the LGA, because he did not have enough information on the various agenda items. Even if that question is characterised as a statement by the Senior Investigator, it is nonetheless apparent the appellant understood the import of the issue, and responded in the affirmative.
4. The essence of this evidence is that the appellant accepted that he had declared an interest under the Code of Conduct and not an interest under the LGA. The Magistrate relied on the evidence accordingly, and it was open to him to do so.
5. As to the broader contention that the VROI was inadmissible, I note the document was tendered by consent at trial and there is nothing in the submissions advanced on appeal to suggest the reception of the evidence was unfair or prejudicial to the appellant, or would amount to a miscarriage of justice.
6. This ground has no reasonable prospects of success and leave to appeal should be refused.

1. By this ground, the appellant contends that the Magistrates did not have the jurisdiction to consider the charges against the appellant. The submissions advanced in support of the ground explain that the appellant's contention is confined to the question whether the proceedings were brought outside the applicable limitation period for such offences. I will deal with the ground on this basis.
2. The general statutory time period for the commencement of simple offences is found in s 21(2) of the CPA. The legislation provides that the prosecution of a person for a simple offence must be commenced within 12 months after the date on which the offence was allegedly committed. The appellant relies on this limitation period in support of this appeal ground.
3. The events which are the subject of the offences with which the appellant was charged occurred between 14 June 2021 and 20 September 2021. The proceedings were commenced on 11 May 2023. The proceedings were thus not commenced within the 12 month period provided for in s 21(2) of the CPA.
4. However, as noted by the respondent in her submissions, the general limitation period in the CPA is expressly subject to the time periods stipulated in any other written law. In the present case, the statutory time periods in the LGA must be considered. The LGA provides, in s 9.25(1), that proceedings for certain offences under that legislation may be commenced 'at any time'. This includes proceedings for an offence under s 5.65(1) and s 5.67. Further, pursuant to s 9.25(2), proceedings for the offences not identified in s 9.25(1) may be commenced within two years after the offence was committed.
5. So, as to the charge alleging a breach of s 5.21(2), the proceedings in the Magistrates Court were commenced within two years of the dates on which the various offences were alleged to have been committed. It follows that the proceedings alleging a breach of this provision were commenced within time.
6. As to the charges alleging a breach of s 5.65(1) and s 5.67, the legislature has seen fit to permit proceedings for those offences to be commenced at any time. That is, there is no applicable limitation period for these offences.
7. This ground is accordingly misconceived, has no reasonable prospects of success, and leave should be refused to appeal on this ground.

1. Following a contested five day trial at which the appellant was legally represented, the Magistrate found, beyond reasonable doubt, that the appellant had failed to vote on numerous motions across multiple meetings of the local government council to which he had been elected, as was required by s 5.21(2).
2. In fact, the minutes of those meetings disclose that the appellant abstained from voting in respect of those motions. That is antithetical to the obligation to vote which the legislation has placed on elected members of local government councils. A council member cannot unilaterally suspend his or her voting obligations under the LGA on the basis that he or she has formed a view the council is taking an impermissible course or by way of a protest.
3. The appellant had made disclosures of an 'interest' in respect of these motions, but those disclosures did not amount to disclosures of an 'interest' recognised by the legislation, such as a 'financial interest'. Importantly, an elected member of a council is only relieved of the obligation to vote if there has been a disclosure of such a recognised 'interest' under s 5.60.
4. The Magistrate also found, beyond reasonable doubt, that the appellant had, in substance, disclosed a 'financial interest' in respect of a motion to authorise the payment by the Council of the appellant's legal fees in a matter (being the Legal Representation Motion). Having disclosed such an interest, the appellant was prohibited from participating in the decision making process related to that motion, unless he was allowed to do so by the other members pursuant to s 5.68. The Magistrate found, to the criminal standard, that there had been no decision by the other members to this effect, and so the conduct of the appellant in voting on the resolution was contrary to the prohibition in s 5.67.
5. Finally, the Magistrate found, beyond reasonable doubt, that the appellant had failed to properly disclose his financial interest in a motion before the Council which was intended to reverse or rescind the decision to authorise the payment by the Council of the appellant's legal fees in a matter (being the Rescission Motion). The appellant was obliged to make such a disclosure under, and in the manner required by, s 5.65(1).
6. None of the grounds of appeal provide a basis to interfere with these findings and conclusions of the Magistrate at first instance.
7. Indeed, it will be apparent from these reasons that I consider the provisions in pt 5 of the LGA which were the subject of the charges against the appellant, and the related statutory provisions, do not operate in the manner contended for by the appellant. It is somewhat curious that the appellant approached his responsibilities as a member of this Council, in the way demonstrated on the evidence, by:

(a) failing to vote on numerous occasions where he had no relevant interest under the LGA which would otherwise have relieved him from the statutory obligation to vote; and

(b) voting on an occasion in which he in fact held an obvious 'financial interest' in the particular matter, being the Legal Representation Motion, the effect of which was to approve payment by the Council for his legal representation.

1. The approach adopted by the appellant represented an inversion of the statutory scheme, in my view.
2. For the foregoing reasons, I would grant leave to appeal in respect of Grounds 4 and 6, but dismiss those grounds, and would otherwise refuse leave to appeal on the remaining grounds of appeal and dismiss the appeal. I will hear from the parties as to whether any further orders are sought including as to the costs of the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

Declaration of Interest Form dated 15 June 2021[142]**

First Declaration of Interest Form dated 22 June 2021[143]**

Second Declaration of Interest Form dated 22 June 2021[144]**

First Declaration of Interest Form dated 20 July 2021[145]**

Second Declaration of Interest Form dated 20 July 2021[146]**

Declaration of Interest Form dated 17 August 2021[147]**

Declaration of Interest Form dated 21 September 2021[148]**

[1] Unless otherwise indicated, references to statutory provisions in these reasons are references to provisions of the LGA and to the provisions as they stood at the time of the relevant offences.

[2] R v Tognini [2000] WASCA 31 [27] - [28]. See ts 48 (16 September 2024).

[6] I note that Exhibit 12 is the initial version of the form completed by the appellant on 17 August 2021, which was superseded by the signed version which is Exhibit 11.

[7] I note the express reference to the penalty of $10,000 was not included in the LGA until 6 December 2024, which is after the convictions were recorded in the present matter: Local Government Amendment Act 2024 (WA), s 42.

[8] Morgan v The State of Western Australia [2011] WASCA 185 [94] - [95]. See, in the civil context, Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 [43].

[10] University of Wollongong v Metwally [No 2] [1985] HCA 28; (1985) 59 ALJR 481, 482. See also City of Wanneroo v Bakota [No 2] [2025] WASCA 62 [307].

[13] As explained by the respondent's counsel on appeal: see ts 214 - 215 (13 November 2025).

[39] Chugg v Pacific Dunlop Limited [1990] HCA 41; (1990) 170 CLR 249.

[40] Overland Corner Station Pty Ltd v Gould [2010] SASC 61.

[47] Ex 1B, pg 58 (minutes of meeting on 22 June 2021).

[48] Ex 1B, pg 58 (minutes of meeting on 22 June 2021).

[61] CAA, s 7(1) and the definition of 'decision' in par (c) of s 6.

[62] CAA, s 10(3).

[63] CAA, s 8(1)(a) and (b).

[64] CAA, s 9(2).

[65] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts-Smith JJA).

[66] CAA, s 9(3).

[67] CAA, s 14(2).

[68] These grounds thus superseded the grounds for appeal identified in the attachment to the amended appeal notice filed on 9 April 2025 (Folio 14), and also superseded the grievances detailed by the appellant in his affidavit sworn on 9 April 2025 (Folio 16).

[70] See also the email from the court sent to the parties on 14 November 2025.

[72] The respondent had also filed a schedule of objections to admissibility of appellant's proposed additional and notice as to cross examination filed 12 September 2025 (Folio 28).

[74] Set out in the respondent's schedule of objections dated 12 September 2025.

[75] R v Soma [2003] HCA 13; (2003) 212 CLR 299, 304; A Child v Andrews (1994) 12 WAR 552, 559.

[76] These principles are drawn from the decisions of the Court of Appeal in Webb v Tang [2023] WASCA 119 and Prichard v M 6-8 Legal Pty Ltd [2024] WASCA 4, and the authorities collected therein.

[77] Local Government Amendment Act 2024 (WA), s 160 and s 161 (which amendments came into effect on 6 December 2024).

[78] Local Government Amendment Act 2004 (WA), s 43.

[79] Hansard, Legislative Council, 3 December 2003, page 13,989, Second Reading Speech of the Local Government Amendment Bill 2003 (WA).

[80] Local Government Amendment Act 2024 (WA), s 42.

[81] Oxford English Dictionary and Black's Law Dictionary (12th Edition), pg 1893.

[83] See the opening words of s 5.68(1)(b).

[84] The term 'allow' is also used in s 5.69(1) and (3).

[115] Exhibit 7 (email sent by the appellant on 29 June 2021).

[116] Being the local laws in place at the time of these offences. See ts 115 - 129 ( 12 November 2025).

[122] Selby v Pennings [1998] WASCA 224; (1998) 19 WAR 520, 532 (Ipp J), 542 (Wallwork J) and 550 (Owen J).

[123] Re Lawrence; Ex parte Goldbar Holdings Pty Ltd (1994) WAR 549, 560 (Malcolm CJ, Seaman and Ipp JJ agreeing).

[124] Australian Crime Commission v Marrapodi [2012] WASCA 103; (2012) 42 WAR 351.

[125] See, more recently, the decision of Musikanth J in Partyka v Director of Public Prosecutions [2024] WASC 273 [37] - [64] and the obiter observations of Howard J in Housing Authority v Garlett [2025] WASC 125 [153].

[126] Australian Crime Commission v Marrapodi [44] - [46] (McLure P), [110] (Allanson J).

[127] Selby v Pennings (532) (Ipp J), (550) (Owen J).

[129] RS2 [17] - [21]. The submissions referred to s 30(4) of the CAA, which applies to appeals to the Court of Appeal, but s 14(2) of the CAA is relevantly in the same terms.

[130] Exhibit 1C, pg 103, noting the appellant in fact voted on the procedural motion, voting against it.

[131] ts 25 and ts 30 - 31 (16 September 2024).

[134] AS [201] - [209]. See ts 131 - 132 (12 November 2025).

[137] See regs 21, 30, 31, 32, 34AC and 34AD of the Local Government (Administration) Regulations 1996 (WA).

[138] Affidavit of the appellant Annexing Grounds of Appeal dates 4 June 2025 [211] - [216].

[139] AS [224]; and ts 161 - 162 (12 November 2025).