Introduction

This section of the LGEMA website places resources that are in the public domain in a ‘one stop shop’, which we assembled to give you authoritative references to cite and apply, for identifying and establishing best practice governance.


Click here to view/download a .pdf of the entire LGEMA Public Page. Once the .pdf is saved and then opened, a search for words and phrases can be made using the 'Search' box in the upper right corner. Please note, there are more search words listed in the .pdf than the web page below. 


LGEMA will be especially helpful for Elected Members espousing the Seven Principles of Public Life.


Legislation WA (Laws)

The LOCAL GOVERNMENT ACT 1995 (WA) is an example of an Act of the WA Parliament, which establishes local government throughout Western Australia. It contains the law (binding rules) of how local government operates, including the role and conduct of Councils, Councillors and employees (including the CEO).

See here about the difference between law and policy.


Explanatory Note

The text of WA laws – Acts and Subsidiary Legislation such as Regulations – are found here.

A beginner’s guide to reading laws is here.

Some Frequently Asked Questions about WA laws are here.

A "Bill is the document Parliament debates when deciding whether or not to adopt an Act.
You can follow the passage of Bills through WA Parliament here.

Act

What is an Act of Parliament?

An Act of Parliament makes law. An Act can also authorise making subsidiary legislation, for example Regulations.

See here for the difference between law and policy.


How to find current WA Acts of Parliament

Using the LOCAL GOVERNMENT ACT 1995 as an example:

Go to https://www.legislation.wa.gov.au/ >

Click on ‘Acts in Force’ >

Click on ‘L’ >
Scroll down to find LOCAL GOVERNMENT ACT 1995.>

Download Act in Word or PDF, and/or search any term in the Act;

OR just click here for the Local Government Act 1995.

NB: Make sure you click on the current 1995 version, and not the repealed 1960 version.

NB: Laws are often amended, so if you have downloaded a version, always check it has not been changed before relying on it.


Subsidiary Legislation - Regulations

What is a Regulation?

A Regulation is always made under the authority of the Act to which it relates. A Regulation fills in the detail of an Act, where the detail might need to be changed more often than the Act itself, which takes much longer to change.

Twelve sets of Local Government Regulations made with the authority of the LOCAL GOVERNMENT ACT 1995 fill in the details of local government law.


How to find WA Current Regulations

Using Regulations made under the LOCAL GOVERNMENT ACT 1995 as an example:

Go to https://www.legislation.wa.gov.au/legislation/statutes.nsf/subsif.html >

Click on ‘Subsidiary Legislation in Force’ >

Click on ‘L’ >

You will find 12 different sets of Regulations made under the Local Government Act starting with Local Government (Administration) Regulations 1996.

Download Regulations in Word or PDF, and/or search any term you are interested in

OR just click here for the LOCAL GOVERNMENT ACT 1995 Regulations and scroll down till you find them.


Subsidiary Legislation - Local Laws

Local Laws are binding laws made by a particular local government, which apply only to that local government’s district.

The text of all local government local laws is here.

Look at the local laws already in force before expending municipal fund resources. Don’t reinvent the wheel. Selectively use clauses from all of them, and make one appropriate for your local needs. Examine any local law or local law amendment proposed by your CEO against the existing local laws.


Common Law

Courts and Tribunals interpret laws that are open to interpretation. Decisions of courts are called the “common law” and are often referred to as judge-made law.

Courts

AYTON -v- CITY OF ARMADALE [2020] WASCA 39 here 

A member of the public was seriously injured by a vehicle at City of Armadale (City) Waste Facility (Site), while dropping off green waste - as directed by the staff. The City plead guilty to failing to maintain a safe work environment at the Site. Court of Appeal increased fine against City to $110,000.

Under the Local Government Act section 5.41(g), CEO at the time, Ray Tame was responsible for, … the employment, management, supervision, direction and dismissal of employees.

Surprisingly, no mention was made in the judgment about CEO’s statutory role in respect of the management of Site managers.

 The Court found that in relation to the Site:

·       There had been a number of WorkSafe incidents leading to directives/orders/reports

·       Most of the staff working at the Site in 2014 were unaware of the WorkSafe directives

·       The Site manager

o   was an extremely poor manager

o   had little or no regard for the safety of the working areas

o   was an exceedingly difficult employee to manage

o   suffered deficiencies must have been obvious for some time before accident

o   needed to be supervised and monitored closely

o   was primarily responsible for the incident

·       The Site manager’s immediate supervisor was also at fault

·       The City to failed to 'effectively enforce' the WorkSafe directive

·       The City is ultimately responsible because… it is at the top of the employment hierarchy. 

·       The City knew of steps it … should take to avoid the risk

·       The City admitted…to an ongoing and serious failure of supervision

·       The City did not enforce its own procedures at the Site

·       The City failed to address any inadequacies in the manager’s compliance

·       The City’s ongoing failure meant an increased risk of serious injury or death at the Site

·       There was no evidence … which showed that the respondent's managers systematically monitored compliance with the 2005

        directive, the 2008 JSA or the recommendations made after the 2006 and 2012 incidents at the Site 

·       The City … was required to ensure not only that it had systems in place which, as far as practicable, were designed to ensure the health and safety of persons who attended the             Site, but so far as reasonably practicable, to ensure that those systems were being implemented and maintained in its daily operations.


DAIN PTY LTD v SHIRE OF PEPPERMINT GROVE [2019] WASC 264 (View/Download here)

WA Supreme Court

“apprehension of bias” – “limits of a decision-maker's functions and powers” - “bias, definition” – “apprehended bias” – “standard of impartiality" - "conflict of interest” – “not improper for a councillor to have formed opinions, and expressed them, before voting”

 

WHOOLEY v SHIRE OF DENMARK [2019] WASCA 28 (View/Download here)

WA Court of Appeal

“ Summary termination” – “CEO power to dismiss senior employee”

 

ORD IRRIGATION COOPERATIVE LTD v DEPARTMENT OF WATER [2018] WASCA 83 at [124]-[125] (View/Download here)

WA Court of Appeal

“no party bears an onus, legal or practical, in review proceedings in the Tribunal”

 

RE v LOCAL GOVERNMENT STANDARDS PANEL [2015] WASC 51(View/Download here)

WA Supreme Court

“jurisdiction to find a local government council member had committed a minor breach” – “the Panel did not have power to 're-characterise' the complaint” –“Panel's functions and powers”

 

YATES v LOCAL GOVERNMENT STANDARDS PANEL [2013] WASCA 8 (View/download here)

“Town of Bassendean” – “ordinary meaning of a word or its non-legal technical meaning is a question of fact” – “meaning or interpretation of word is a question of law“ – “meaning of dishonest” – “Meaning of statement” - “appeal to Supreme court can only be brought on a question of law“

 

HARGREAVES v TIGGEMANN [2012] WASCA 92 (View/download here)

“procedural unfairness” – “denial of natural justice”


NATURAL FLOOR COVERINGS CENTRE PTY LTD v MONAMY (No 1) [2006] FCA 518 (View/download here)

Federal Court

“inferred a reasonable timeframe to comply with orders”


JUSTELIUS v PITTWATER COUNCIL & ORS [2002] NSWSC 348 (View/download here)
NB: In context of NSW LG Act
“Defamatory imputations” - “a Councillor is not in law… a servant or agent of Council”


LANGE v AUSTRALIAN BROADCASTING CORPORATION [1997] HCA 25; (1997) 189 CLR 520 at 559 ­ 560 and 571 ­ 572 (View/download here)
High Court

GREENE v GOLD COAST CITY COUNCIL [2008] QSC 25 (View/download here)
Queensland Supreme Court

Applicable to both cases above: “Political free speech is an underpinning value in local government."


BALLINA SHIRE COUNCIL v RINGLAND (1994) 33 NSWLR 680 (View/download here)

NB: In context of NSW LG Act

“Defamation and Injurious Falsehood have two different objectives" - "Injurious Falsehood [has] four elements, Falsity; Publication of the false statement to a third party; Malice; and Actual damage”- “in defamation, malice is not necessary for a claim to be made”


TRIBUNALS

FAIR WORK COMMISSION of AUSTRALIA

Is a CEO being bullied? What is the difference between bringing a CEO to account and bullying?

In dismissing an application by Cockburn CEO Cain to stop him being bullied, the Fair Work Commission held (view here)

"[Bullying is not] ... reasonable management action carried out in a reasonable manner ... noting ... the right of management to take reasonable management action in the workplace."

See newspaper article from the Fremantle Herald on April 24, 2020 view here.

Fair Work bullying and harassment guidelines view here.


State Administrative Tribunal WA (SAT)

IMPORTANT MESSAGE 1

Defences for use in Standards Panel complaints, from Court decisions (above) and successful reviews in SAT (below) include:

1.    Regulations not intended to be unworkable rules than inhibit political free speech, political communication by Elected Members: LANGE V AUSTRALIAN BROADCASTING CORPORATION; GREENE V GOLD COAST CITY COUNCIL; BRADLEY and LOCAL GOVERNMENT STANDARDS PANEL; TREBY and LOCAL GOVERNMENT STANDARDS PANEL

2.    Elected Members have an overriding duty to put public interest before private interest and express themselves appropriately: TREBY and LOCAL GOVERNMENT STANDARDS PANEL.

3.    Context and particular circumstances, and reasonableness in which purported breach occurred is important: MCMANUS and LOCAL GOVERNMENT STANDARDS PANEL; HODSDON and LOCAL GOVERNMENT STANDARDS PANEL

4.    Use of word “improper” in the Regulations takes its flavour from surrounding context: KING and LOCAL GOVERNMENT STANDARDS PANEL; HIPKINS and LOCAL GOVERNMENT STANDARDS PANEL.

5.    An Elected Member, in some cases, can criticise actions of others relevant to affairs of local government.: HODSDON and LOCAL GOVERNMENT STANDARDS PANEL

6.    Have not impugned character of an Elected Member or Councillor: KING and LOCAL GOVERNMENT STANDARDS PANEL.

7.    Have not used aggressive or intimidating manner when complaining: RE and LOCAL GOVERNMENT STANDARDS PANEL.

8.    “Detriment” must be intended but not necessarily caused: TREBY and LOCAL GOVERNMENT STANDARDS PANEL

9.    Action was unplanned, unanticipated and brief, which goes to lack of intention to cause “detriment”: RE and LOCAL GOVERNMENT STANDARDS PANEL (SAT).

10. Other Elected Members committing same/similar/worse breach at same time but not reported: MCMANUS and LOCAL GOVERNMENT STANDARDS PANEL.

11. The Standards Panel cannot re-characterise a complaint: RE -v- LOCAL GOVERNMENT STANDARDS PANEL.

12. Mitigating circumstances can make difference to a penalty when breach found.

IMPORTANT MESSAGE 2

The most important language message that the SAT decisions tell us as Elected Members, is to use statements and/or questions of fact, and not use colourful opinion, adjectives or adverbs when questioning the governance arrangements of a local government or the people that operationally implement (CEO and staff) or supervise them (Council).

SAT decisions are here.

In the search box enter phrases such as “Standards Panel” or “Local Government”.

IMPORTANT MESSAGE 3

Read a decision of SAT to help you respond to a breach complaint against you, especially one that deals with the particular Regulation you are said to have breached. Respond in your written answer by addressing each of the elements of the particular regulation you are said to have breached in the complaint against you: for example for a Conduct Regulation 7(1) breach to be established:

                                    1.        must be an Elected Member (EM); AND

                                    2.        EM made improper use of office; AND

                                    3.        EM gained directly or indirectly for the EM or another person (Reg.7(1)(a)); AND/OR

                                    4.        EM caused detriment to the local government or any other person (Reg.7(1)(b)).

Introduce any evidence you have with your response with your response to the complaint, as you may not get another chance.


SHANNON and LOCAL GOVERNMENT STANDARDS PANEL [2020] WASAT 50 here

In overturning certain Standards Panel decisions against Mayor Shannon, the SAT decided that with the authority of Council,

“...it is … reasonable for a Council by its Mayor to be able to explain [to the community] why it may or may not have taken action regarding a matter(s) in which there has been public interest [and so was NOT improper use of her office]: para 51;

“[and for the Mayor to tell the community] the Town's reason for not recruiting the acting CEO internally from senior executives [and so was NOT an improper use of her office]”: para 54.

It is the opinion of many that the Standards Panel lacks procedural fairness and is part of the system designed to assist poorly performing CEOs avoid accountability. When EMs have resources to challenge Standards Panel decisions in the State Administrative Tribunal, the Standards Panel decisions are often overturned: see http://lgema.org/public and scroll down to SAT decisions overturning Standards Panel decisions.

 

MATHESON and LOCAL GOVERNMENT STANDARDS PANEL [2020] WASAT 26 here

STANDARDS PANEL

SAT overturns Standards Panel finding against a Councillor, again. This very helpful decision stands for the following principles:

CEO REPORTS

1.    CEOs sometimes obtain very expensive reports at significant cost to ratepayers that contain hearsay, carry no weight and fail to address the primary concern at issue.

2.    A Standards Panel must give due consideration to Councillors’ concerns.

ANNOTATING/AMENDING COUNCIL MINUTES

3.    An annotation to Council Minutes must be:

·       put to the Council;

·       discussed by the Council; and

·       endorsed or approved by the Council.

4.    Legal advice giving rise to annotations to Council minutes should be provided to Councillors.

5.    Adding a notation to Council Minutes in an effort to rectify shortcomings identified by a Councillor, is indicative of a process that is seriously flawed.

BLOCK VOTING

6.    A Councillor can subjectively form the view that there is 'block voting' taking place from time to time; that a culture of fear and intimidation exists in a Council; that a Council can become increasingly secretive about its work; and that the trend of openness may be reversed towards a trend of lack of transparency.

7.    The failure of a CEO; Mayor and/or fellow Councillors to consider carefully a caution by a Councillor made in good faith is indicative of a culture within a Council whereby decisions were sometimes made by way of block voting without the proper consideration of the merit of an agenda item under discussion.  The culture of fear that can be cultivated in a Council can be shown to the Tribunal by evidence: for example affidavits signed by Councillors without them been given adequate time to seek legal advice or to discuss the affidavit at a Council meeting.

COUNCIL DEBATE CAN INCLUDE RESPECTFUL VENTILATION OF DIFFERENCES and COUNCILLORS MAY EXPLAIN IN PUBLIC DISAGREEMENT WITH A COUNCIL DECISION

8.            Respecting decisions of a Council does not equate with necessarily agreeing with the merit of those decisions.  Even after a vote on a matter had been taken by Council, a Councillor may explain to his or her electorate why he or she disagreed and continues to disagree with that decision,                                                                                                                                                                  in the discharge of their duties. However, such explanations must be done in a courteous and respectful manner whilst also representing the interests of the community.

In making comments, Council debate must be of such nature that it does not distract from the dignity of the office or adversely reflect on the competence of fellow Councillors.

However, public office and public interest require robust debate, public ventilation of differences and scrutiny of policies.  

9.            The right to freedom of political communication is not absolute. The right does not confer personal rights. Reasonable restrictions may be imposed on whatever freedom of political communication exists at the level of local government.

10.         A Councillor does not necessarily undermine the majority decision-making of a Council, when expressing concern at the legality of a resolution. Such an action may be reasonable, proportionate and consistent with what could be expected of a prudent Councillor after they have exhausted all other avenues. Ongoing criticism must be courteous and in acknowledgment that a majority had made the decision.

COUNCILLOR LETTER TO NEWSPAPER

11.         A Councillor having exhausted all options available; owes a duty to the public to make them aware that the decision to exclude them from a meeting may not have been proper in accordance with the appropriate sub-section of the LG Act. The option to publish a very succinct letter in the Post newspaper was reasonable.  The Councillor acted in the best interests of the Council and in accordance with her obligation of fidelity to the local government.

COUNCILLOR CAUSING DETRIMENT

12.         When considering whether detriment (as in the Conduct Rules) had been intended or suffered, it is noted that detriment is not to be limited to actual loss or injury suffered.  Detriment includes non-financial loss, humiliation, embarrassment, and harassment. In order for a “detriment”  finding to be made, the conduct must either have been intended for a person to suffer detriment or for the person making the statement to be recklessly indifferent that detriment was probable or likely as a consequence of the conduct. A Councillor may discharge their duty towards the Council by repeatedly drawing the attention of the CEO, the Mayor, and fellow Councillors to the incorrect reliance on a sub­section of the LG Act.

13.         The reputation of some persons may suffer, even it is the Mayor and CEO simply because they seemingly refuse to address a reasonable concern about the legality of the exclusion of the public from a meeting. They may even be embarrassed by the exposure. However, this is self-inflicted. It is not a breach of the Regulations by the Councillor who brings such an issue to the public’s attention in a reasonable manner.

NOTICE OF CONCERN TO CEO, MAYOR AND COUNCILLORS

14.         A Councillor can properly discharge their duties by repeatedly and respectfully making their concerns known to the CEO, the Mayor and fellow Councillors about the incorrect legal basis upon which the public is excluded from a Meeting.

NOTICE OF COUNCILLOR CONCERN TO PUBLIC

15.         The duty of a Councillor towards their office, fellow Councillors and the public may justify bringing to the attention of the public, a concern that the public may have been excluded from a Council Meeting without a proper legal basis.  This is a reasonable concern arising from the importance of accountability and responsibility acting in good faith (i.e. honestly, for the proper purpose, and without exceeding [her] powers) in the interests of the local government and the community', 'in accordance with her obligation of fidelity to their local government  as is required by part 4.1(a) of the Code.

16.         A Councillor may act properly, prudently and responsibly as a Councillor ought to do by seeking clarification of the legal basis of a decision and when that was not provided after several attempts, to draw it to the attention of the public who had been directly affected by the decision to exclude them.

CLOSING COUNCIL MEETINGS

17.         Council must reference proper Local Government Act subsection to close lawfully a meeting to the public. A decision to exclude the public from a meeting without the proper foundation is without merit and is without a proper legal basis. A Council majority cannot remedy the lack of a proper legal basis for a resolution to exclude the public from its deliberations.

18.         A CEO, Mayor and majority of a Council can be so fixated on excluding the public from a Meeting, that they close their minds to the reasonable concerns raised by a Councillor.

19.         A Council must exercise a discretion whether to close a meeting and in doing so must apply its mind to all relevant information, including the principal objective namely, accessibility to the public.

20.         Council in closing a meeting to the public, generally speaking, must precede the closure by at least three practical steps, namely:

a) identification of the relevant sub-section of s 5.23(2) of the LG Act for the meeting to be closed;

b) consideration by Councillors of the rationale for the proposed exclusion of the public; and

c) a vote to close the meeting.

22.     If a decision is made to close a meeting, the relevant sub-section from which the power is derived must be accurately identified.

23.     A Councillor can act in the interests of the Council and the public by drawing to the attention of the public that the public had been excluded from attending the discussion of an agenda item without a proper legal basis.  The Council and the public may have their interests served by the criticism raised by a Councillor.

24.     The mere fact that a subject matter potentially falls within one of the grounds to close a meeting under the Local Government Act, does not automatically mean the public must be excluded. A proposition in the agenda/notice of meeting that the public 'is required' to be excluded is erroneous.  The LG Act does not mandate exclusion of the public from a Council meeting but bestows a discretion only to close a meeting.

25.     It is a seriously flawed process that gives rise to the exclusion of the public from the discussion of an agenda item, where the refusal of the CEO, Mayor and fellow Councillors to address the merit of concerns expressed by a Councillor.


STEPHEN CAIN (AS CEO OF THE CITY OF COCKBURN) and SMITH [2020] WASAT 18 here

Catchwords: Local government - Minor breaches of reg 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007 (WA) - Order of the Local Government Standards Panel to provide public apology - Failure to comply with the Panel's order - Referral to the Tribunal under s 5.118(1) of the Local Government Act 1995 (WA) - Sanctions - Suspension under s 5.117(1)(a)(iv) of the Local Government Act 1995 (WA) - Costs awarded under s 87(2) and (3) of the State Administrative Tribunal Act 2004 (WA)

The Tribunal orders:

1. The respondent, pursuant to s 5.117(1)(a)(iv) of the Local Government Act 1995 (WA), is suspended for two months from her office of councillor (formerly Deputy Mayor) on the Council of the City of Cockburn.

2. Within 14 days of the date of this order, pursuant to s 87 of the State Administrative Tribunal Act 2004 (WA), the respondent must pay to the City of Cockburn the amount of $6,000.

CHRONOLOGY TO NOTE:

15 November 2018: Cr Sands made a complaint against Cr Smith for a breach of Reg. 7 of the Local Government (Rules of Conduct) Regulations 2007 (WA). 

18 June 2019: the Standards Panel published its decision and reasons for decision for finding that Cr Smith had breached reg 7 of the LG Regulations. Cr Smith did not appeal and did not comply with the Standards Panel orders.

6 September 2019: CEO Cain lodged an application with the State Administrative Tribunal under s 5.118(1) of the Local Government Act 1995 (WA) (LG Act). CEO Cain alleged that Cr Smith had failed to comply with the order made by the Local Government Standards Panel.

23 October of 2019: CEO Cain files bullying claim at Australian Fair Work Commission … “[which]  centred on the alleged conduct of Councillor Smith…[but included Crs Downing; Howlett; Smith; Allen]”

8 May 2020: the FWC dismissed CEO Cain’s application, stating “…the anti-bullying jurisdiction should not be used as ‘a means of hampering, or even stopping justified disciplinary action, implemented by an employer, as a reasonable management response to an employee’s poor performance or misconduct…”


SOUTHWELL and LOCAL GOVERNMENT STANDARDS PANEL [2020] WASAT 6 here

Catchwords: Local government - Review of decision of Local Government Standards Panel for minor breach - Facebook post made before council minutes available - Whether councillor disclosed information acquired at closed meeting - Whether information in public domain

SAT found that the Standards Panel was wrong in issuing 2 sanctions for the same behaviour, and so dismissed one of the complaints.


NGUYEN and LOCAL GOVERNMENT STANDARDS PANEL [2020] WASAT 1 here

Catchwords: Local government - Review of decision of Local Government Standards Panel - Minor breaches - Improper use of office - Intent to cause detriment - Use of official email account - Detriment suffered - Turns on own facts

Standards Panel decision affirmed, penalty amended.


SOUTHWELL and LOCAL GOVERNMENT STANDARDS PANEL [2019] WASAT 128 here

Catchwords: Local government - Review of decision of Local Government Standards Panel - Alleged minor breaches - Whether improper use of office - Whether intent to cause detriment - Sanction for minor breach of Local Government Act 1995 (WA) - Breach of reg 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007 (WA) - Turns on own facts

Standards Panel decision affirmed, penalty varied.


SCOTT and LOCAL GOVERNMENT STANDARDS PANEL [2019] WASAT 95 (View/download here)

“critical email did not enter public domain” - “intention to denigrate and cause damage, detriment  “ - “not inexperienced Councillor” – “result of frustration” –“insight and remorse shown” –“penalty reduced” –“disciplinary proceedings’ includes reflecting community disapproval, maintaining appropriate standards councillor communications”


PENN and LOCAL GOVERNMENT STANDARDS PANEL [2019] WASAT 83 (View/download here)

“Intervener under obligation to assist Tribunal” – “Intervener not acting on behalf of or defending decision of respondent” - “Intervener may form the opinion that there is not an adequate basis for disciplinary action and support application” – “Costs can be awarded against Intervener”


KEPERT and LOCAL GOVERNMENT STANDARDS PANEL [2019] WASAT 78 (View/download here)

(Upheld breaches, varied penalties)

“Facebook posts” – “Whether improper use of office” – “intent to cause detriment” – “credibility”

 

OSBORNE (AS CEO OF THE CITY OF BUNBURY) and STECK [2019] WASAT 72 (View/download here)

“letter to newspaper criticising council decision” – “no remorse or insight” - “suspension”

 

MCMANUS and LOCAL GOVERNMENT STANDARDS PANEL [2019] WASAT 50 (View/download here)

(Overturn Standards Panel)

“Councillor conduct at a council meeting” - “context surrounding a Councillor's conduct is important” – “context that what was said by another Councillor included the word 'lie', and was not complained about”


HODSDON and LOCAL GOVERNMENT STANDARDS PANEL [2019] WASAT 49 (View/download here)

(Overturn Standards Panel)

“use of word 'improper' cannot be considered in isolation" - “reg 7 does not prohibit council member from discussing council business, to question, and in some cases, no doubt, to criticise, the actions of others which impact on matters relevant to the affairs of a local government"


BLANCO and LOCAL GOVERNMENT STANDARDS PANEL [2019] WASAT 42 (View/download here)

(Overturn Standards Panel)

“fabrication of complaint”

 

SHERIDAN (as CEO of the Shire of Chittering) and GIBSON [2019] WASAT 12 (View/download here)

“belated apologies” – “suspension” – “mitigating circumstances”

 

SHIRE OF DENMARK and BARTLETT [2018] WASAT 58 (View/download here)

“Facebook post” – “Council member resigned”

 

KING and LOCAL GOVERNMENT STANDARDS PANEL [2018] WASAT 42 (View/download here)

(SP upheld, penalty varied)

“principles to be applied alleging a minor breach” - “improper use of office” – “intention to cause detriment – "letter to newspaper” - “what is improper will depend on context of conduct”

 

SHIRE OF HALLS CREEK AND TAYLOR [2017] WASAT 161 (View/download here)

“inappropriate disclosure of letter” –“Belated public apology” – “suspension deferred”

 

RE and LOCAL GOVERNMENT STANDARDS PANEL [2017] WASAT 84 (View/download here)

(Overturn Standards Panel)

“discussion between councillor and staff member” – “Improper use of office" - "intentiond to cause detriment” – "objective basis" - "detriment not suffered"

 

HIPKINS and LOCAL GOVERNMENT STANDARDS PANEL [2014] WASAT 48 (View/download here)

(Overturn Standards Panel)

“sending email" - “improper, definition”

 

PHILLIPS and LOCAL GOVERNMENT STANDARDS PANEL [2012] WASAT 97 (View/download here)

(Lack of jurisdiction for SAT to consider)

“Use of secondary materials”

 

BRADLEY and LOCAL GOVERNMENT STANDARDS PANEL [2012] WASAT 44  (View/download here)

(Overturn Standards Panel)
“Political free speech an underpinning value in local government” – “Cr duties read in light of practical and political realities" - "Cannot artificially inflate Cr obligations when tends to have a 'chilling effect' on local political speech and communication” – “Councillors overriding duty to put public interest before private interest and express themselves appropriately” – “Councillors can express an opinion" - “Councillors are not to be criticised for attempting to represent their constituency and community interests to the best of their abilities.  Their job should not be made even more difficult by the imposition of unworkable rules”

 

TREBY and LOCAL GOVERNMENT STANDARDS PANEL [2010] WASAT 81; (2010) 73 SR (WA) 66 (View/download here)

 (Affirm Standards Panel)

 “meaning of 'improper'” – “meaning of 'detriment’” - "Mayor Standards of behaviour” – “Implied freedom of political communication"


HARGREAVES AND LOCAL GOVERNMENT STANDARDS PANEL [2008] WASAT 300 (View/download here)

(Affirm Standards Panel)

“councillors do not use their position to publicly criticise employees within their local government” - “concerns about employees’ performance should be dealt with within local government organisation”


Governance Bodies


Corruption and Crime Commissions

WA Corruption and Crime Commission

You can report corrupt conduct to the CCC anonymously or confidentially here.


The CCC reports on corruption, including in local government and makes recommendations, which are helpful when reviewing how well your local government procedure and practices measure up. They make entertaining and elucidating reading. CCC reports relevant to local government include:


Report into how conflicts of interest undermine good governance - A report on the Chief Executive Officer of the Shire of Halls Creek 30 August 2018  (View/download here)
“conflict of interest” - “financial interest” - “refuse to accept resignation” - “termination” -  “serious misconduct” - “procurement”  - “public officer” - “tender” -  “whistleblower” -  “preferred supplier”- "CEO Rodger Kerr-Newell"


Report into Allegations of Serious Misconduct by Councillors of the City of Perth between 21 and 24 October 2017 18 December 2017 (View/download here)

“Attendance fee” – “Councillor allowance” – “allegation, meaning of” – “financial inducement” – “bribe”

 

Report on a Matter of Governance at the Shire of Dowerin 10 October 2016 (View/download here) (Link to LGEMA's Case Study here)

“credit card” – “stealing as a servant” – “financial controls” – “governance” – “audit committee” – “rules of conduct” – “ budget” – “CEO performance” – “CEO excessive power” – “ separation of powers” – “operational” – “governance” – “audit role” – “fraud risk” – “internal controls”

 

Report on Misconduct Risk in Local Government Procurement 4 February 2015 (View/download here)

Cities of Cockburn, Joondalup, Perth, Swan and Wanneroo” - “City of Stirling” - “City of Baywater” – “Town of Cottesloe” – “CEO Shire of Murchison” - “audit” – “procurement” – “fraud” – “risk mitigation” – “internal controls” – “record keeping” – “goods and services” – “integrity” – “invoices” – “credit card” – “tender scrutiny” – “verify work done” – “separation of invoice and payment roles” – “gifts” – “CEO oversight” – “payment process” – “conflicts of interest” – “secondary employment”

 

Report on an Investigation into Acceptance and Disclosure of Gifts and Travel Contributions by the Lord Mayor of the City of Perth 5 October 2015 (View/download here)

“Lisa Scaffidi” - “gift” – “travel contributions” – “legal advice” – “gift register” – “Misconduct, definition” – “ corruptly, definition” – “annual return, purpose”

 

Report on the Investigation of Alleged Public Sector Misconduct by a Local Government Employee in Relation to the Purchase of Management Systems Software 19 December 2013 (View/download here)

“Augusta-Margaret River Shire” – “Kalamunda Shire” – “James Trail” – “procurement” – “ audit” – “ contract splitting” – “anti-avoidance” – “gift register audit” – “misconduct risk” – “public officer” – “CEO financial management duties” – “monopoly suppliers” – “CEO properly informing Council” – “Purchasing Policy breach” – “conflict of interest” – “estimation of gift value, improper” – “Department prosecution” – “Business Ethics Statement”

 

Report on the Review of the Capacity of Local Governments in the Pilbara to Prevent, Identify and Deal with Misconduct 16 April 2013 (View/download here)

"Town of Port Hedland” – “Shire of Roebourne” – “Shire of East Pilbara” – “Shire of Ashburton” – “misconduct, definition” – “public officer, definition” – “serious misconduct, definition” – “misconduct risk” – “regional council” – “ misconduct framework”

 

Report on the Investigation of Alleged Public Sector Misconduct at the City of Wanneroo 3 December 2009 (View/download here)

"lobbyists” – “fidelity to public interest, public officer duty” – “integrity” – “Cr conduct as public officer, notional test” – “misconduct, standard of proof” – “ Public Sector Code of Ethics for WA” – “ public interest” – reasonable standard benchmark” – “ perception of being open to influence” – “regional council” – “personal commitment to ethical behaviour must be evident in words and actions” – “ Crs prohibited from giving any undertaking [about their future decision making]”

 

Report on the Investigation into Allegations of Misconduct by Councillors or Employees of the City of Bayswater 13 November 2009 (View/download here)

“record keeping” –“tender process” – “contract process” –“financial controls” – "time sheets audit” – “ lack of worker’ supervision” – “ Councillor primary and annual returns” – “conflicts of interest” – “Mr Casilli”

 

“Serious misconduct in procurement of environmental services” 21 May 2019 (View/download here)

“conflict of interest” – “improper procurement practices” – “ unauthorised disclosure” - “serious misconduct not necessarily criminal or disciplinary offence”


Report on the Investigation of Alleged Misconduct Concerning the Rezoning of Land at Whitby 3 October 2008 (View/download here)

“Lobbying activities” – “ minor breach of discipline” – “public officers” –“ misconduct” – “intercepting powers” –“ misconduct standard of proof, balance of probabilities” - “balance of probabilities, definition” – “improper release of confidential information” – “ corruption, definition’ – “ disclosing official secrets, crime” – “ breach of discipline as grounds for termination” – “is information inherently confidential” – “Lobbying giving a commercial advantage”

 

Report on the Investigation of Alleged Misconduct Concerning Mr Stephen Lee, Mayor of the City of Cockburn 26 September 2008 (View/download here)

“election campaign funding” – “misconduct’ – “fundraising processes” – "failure to declare gift”


Office of the Auditor General WA (OAG)


OAG Contact details email info@audit.wa.gov.au or phone (08) 6557 7500.

For answers to FAQs or to suggest local government audit topics, make referrals or complaints go to audit.wa.gov.au/contact-us/

For reports useful for assessing you local government practices see https://audit.wa.gov.au/reports-and-publications/reports/

Some OAG reports helpful for identifying local government best practice and procedure are listed below.


As OAG reports on administrative practices, these reports can be applied as a measure of CEO performance.


“Regulation of Consumer Food Safety by Local Government Entities” Report 28: 30 JUNE 2020 here

OAG RECOMMENDATIONS:

Local government entities should:

1. Ensure food business inspections are prioritised & carried out according to their risk classification

2. Ensure changes to inspection frequencies are only made based on a documented assessment of compliance history or other  urgent requirement 

3. Improve recordkeeping for food business inspections and compliance reporting to:

a. better understand inspection & compliance history

b. identify compliance issues & follow-up activities 

c. respond to emerging food safety issues.

4. Develop procedures & staff guidance to ensure non-compliant food businesses are followed up & Standards enforced in consistent timely manner 

5. Work with Department of Health to develop & implement new electronic food safety inspection & record keeping systems.


Information Systems Audit Report 2020 - Local Government Entities" Report 27: 2019-2020 25 June 2020 here 

“…ALL 10 local government entities (1 regional and 9 metropolitan local government entities – not identified ) had SIGNIFICANT SHORTCOMINGS in their information security practices. Entities need to seriously consider these standards and the recommendations in this report to improve information security practices and protect the confidentiality, integrity and availability of information and systems...

“We found that entities DID NOT HAVE GOOD PRACTICES TO MANAGE INFORMATION AND CYBERSECURITY. Entities did not have appropriate policies and processes to identify and guide information security practices and they often lacked ongoing monitoring processes to detect and respond to threats. These gaps in security controls seriously undermine the confidentiality, integrity and availability of information held by these entities...” 

“Under section 7.12A of the Local Government Act 1995, the 10 audited entities are required to PREPARE AN ACTION PLAN addressing significant matters relevant to their entity for submission to the Minister for Local Government WITHIN THREE MONTHS of this report being tabled in Parliament and for publication on the entity’s website. This action plan should address the points above, to the extent that they are relevant to their entity.” 

There are NINE RECOMMENDATIONS about improvements required and an Appendix A which provides, “BETTER PRACTICE GUIDANCE to manage technical vulnerabilities”.


“Local Government Contract Extensions and Variations” 4 May 2020 here

This report examined BAYSWATER, KWINANA, ROCKINGHAM, SWAN, NARROGIN, WAGIN, SOUTH METROPOLITAN REGIONAL COUNCIL, COTTESLOE local governments.

1.      Which of those LG CEOs have made full report to their Council about findings and made recommendations to Council, and placed that report on their local government website as required within 3 months of the OAG report?

2.      Which other local government CEOs reported to their Council about the Best Practice Principles identified in this OAG report?


Fraud Prevention in Local Government 15 August 2019 here.


Local Government Building Approvals 26 June 2019  here.


Verifying Employee Identity and Credentials 19 June  2019 here.


Engaging Consultants to Provide Strategic Advice 5 June 2019 here.


Information Systems Audit Report 15 May 2019, 21 August 2018 here.


Records Management in Local Government 9 April 2019 here.


Audit Results Report – Annual Report 2017-2018 Financial Audits of Local Government 7 March 2019 here.


Management of Supplier Master Files 7 March 2019 here.


Local Government Procurement 11 October 2018 here.


Timely Payment of Suppliers 13 June 2018 here.


Controls over Corporate Credit Cards 9 May 2018 here.


Management of Contract Extensions and Variations 8 May 2018 here.


Agency Gift Registers 15 March 2018 here.


Local Content in Government Procurement 5 December 2017 here.


WA Tourism Strategy 2020 30 November 2017 here.


Rich and Rare: Conservation of Threatened Species Follow Up Audit 6 September 2017 here.


Malware in the State Government 7 December 2016 here.


Financial and Performance Information in Annual Reports 21 July 2016 here.


Regulation of Builders and Building Surveyors 22 June 2016 here.


Controls Over Employee Termination 26 August 2015 here.


Verifying Employee Identity and Credentials 2 December 2015 here.


Local Government Inquiries WA

Report into the Shire of Perenjori 2019 (View/download here)

Inquiry Findings included:

·         State of Perenjori files relevant to the inquiry, tender registers and electronic records of the Shire was, at best, haphazard.

·         Poor record keeping severely hampered Authorised Persons ability to fully inquire into operations and affairs of Shire.

·         CEO Mills breached section 78(1) of the State Records Act 2000 by not ensuring government records were being kept in accordance with the Shire’s record keeping plan, and repeatedly failed to comply with obligations under regulation 17(2) of the Local Government (Functions and General) Regulations 1996 by not including prescribed details on tender register.

·         Shire President repeatedly failed to comply with the requirements of section 5.22 of the Local Government Act 1995 and regulation 11(b) and (c) of the Local Government (Administration) Regulations 1996 by confirming minutes of Council meetings that were incorrect and/or otherwise did not include the prescribed information.

·         Council has breached regulation 11(f) of the Local Government (Administration) Regulations 1996 for not ensuring the minutes of a council or committee meeting included the information as required for agenda items, nine times

·         CEO Mills failed to comply with [Purchasing] Policy by failing to document why three (3) written quotes were not obtained for purchase of goods or services relating to tender

·         CEO Mills and Council breached regulations by separating purchases that would otherwise together be put to public tender as contract to supply was more or likely to be more than $150.000.

·         Tender Panel failed to comply with Policy by not undertaking evaluation of potential suppliers for [a contract] impartially, honestly and consistently.

·         CEO Mills did not comply with Policy … by failing to disclose an actual or perceived conflict of interest in relation to the Shire's original tender process for [a contract]; may have breached section 5.93 of the Local Government Act 1995 by improperly disclosing SCH's confidential tender documents; failed to act in accordance with Policy  by not evaluating tenders in relation to [a contract] impartially, honestly and consistently; breached section 5.93 of the Local Government Act 1995 by making improper use of confidential information that was known to her by way of her position as CEO.

·         Although there has been a degree of deception on the part of  CEO Mills, it is also noted that the Councillors of the Shire of Perenjori appear to have been willingly misled and not performed due diligence in all cases.


Report into the City of Melville 2019 (View/download here)

Summary of Key Findings includes:

Public Question Time

·         The City was not as open and transparent in relation to their policies, meeting procedures, work instructions and information as they could have been and they neglected to provide the public with information that

·         The majority of questions put to the council and or city were answered with the exception of those deemed to divert a substantial and unreasonable portion of the City’s resources away from its other functions, which is permitted for under section 5.95 of the Act.

Public access to information

·         The City’s request for further information regarding Complainant A on several occasions before actioning a request to provide information is not appropriate behaviour for a government body.

·         The City could have attempted to manage their request in more professional manner. Now that the City has obtained legal advice, this should cease to be an issue

·         The City should have been aware of its obligations in the first instance and dealt with the application in a more appropriate and timely manner.

Managing complaints

·         Officers dealing with complaints need to be mindful that regardless of the complainant all complaints need to be addressed in a professional manner abiding by the process adopted by the City.

·         A more robust complaints handling policy would assist in dealing with the issues identified during this investigation particularly regarding a different avenue for persons to take should they be unsatisfied with the outcome.

Considerations relevant to recommendations

·         The good culture of any organisation is at the heart of its success as an enduring institution. To instill confidence in the community that the administration and elected members are, as a collective body, providing good governance which is in the best interests of the community the Authorised Persons have made recommendations for both the immediate and longer term.

·         A number of the recommendations will … drive a cultural change which will ensure all parties are better informed, have a better understanding and ultimately more effective and positive governance.

Actions taken by City/Council

City and Council has already taken initiatives to improve its governance arrangements by undertaking the following:

·         The Council have reviewed the Public Question Time Policy and have implemented changes.

·         The City provided a summary of the City/Council’s trial process for managing public question time on its website.

·         The City has upgraded its website.

·         The City has engaged WALGA to perform an independent review into City’s Meeting Procedures.

·         Internal learning review with the assistance of WALGA to gauge an understanding of how the City could have dealt with complaints differently has also been undertaken.

Recommendations Include:

1.    Consideration be given by Council about engaging an independent person to review and act on complaints about City processes and decisions for a period of 3 months from the date of this report.

2.    All senior staff undertake training in complaint management

3.    City undergo an independent governance with report in 3 months

4.    City undergo a further independent governance review with report in 6 months after the local government elections.

5.    Within 6 months of second report CEO to deliver comprehensive report outlining:

            i.        steps taken in response to the above recommendations;

           ii.        identifying the number of senior staff that have undergone the training as set out in recommendation 3;

          iii.        updating the status of the Governance Review in relation to the number of elected members and staff who have participated;

           iv.        the processes the City has put in place in response to recommendation 5; and

 v.        the impact, if any, of the updated policies on Public Question Time, Managing Unreasonable Conduct by Customers, Legal Representation and the Complaint Management Policy.


City of Joondalup Inquiry 2005 Summary para 26.

The tortuous process which commenced with the decision in March 2001 not to renew the position of Mr Delahunty as CEO and ended with the suspension of the Council on 5 December 2003, was one in which elected members strayed many times from the path of rational and otherwise ethical behaviour, both in the way in which they behaved individually towards one another and in the way they behaved as a group, by reason of their decisions, towards the electors whom they were representing. They significantly failed in that regard to provide good government to the City of Joondalup.

Recommendation 13: A committee of the Council of the City of Joondalup should be established to supervise the answering of public questions and report on and recommend action relating to the answers to questions to the Council.

Recommendation 24: The Code of Conduct of the City of Joondalup should be reviewed and a process of adjudication of alleged breaches by an independent referee added, and elected members should be trained in its content.

Recommendation 17: Local governments should not hesitate to obtain alternative legal advice or a second opinion, where elected members are divided or hesitant about any advice given.

Recommendation 18: When elected members are considering advice from legal practitioners they should be careful to follow legal advice, so as to ensure that they are not otherwise acting improperly, but Councillors, employees and legal advisers should be careful also to ensure that a distinction is drawn between advice which is legal advice and advice which is strategic advice …  and be aware of the discretion which remains in elected members to make decisions inconsistent with strategic advice.

Recommendation 19: The meeting procedures for local authorities should preclude the provision of written legal advice without adequate time to read and understand it before it is acted upon.

Recommendation 21: Local authorities and the DLGRD should co-operate to keep a central register of legal advices which may be of general assistance to local governments, in so far as that may occur without impacting on the need to preserve legal professional privilege

Recommendation 22: A policy should be established by the Council of the City of Joondalup which facilitates full access to legal advice by elected members.


Policy


See here for the difference between law and policy.


Department of Local Government Sport & Cultural Industry (DLGSC) Policies

DLGSC 39 Local Government Policies see here.

Key words: “open space” – “CEO appointment” – “Dogs” –“ burials” –“land valuations” – “council motion clarity” – “council forums” – “declaring interest” –“delegation” – “ financial interest” –“ disruptive behaviour” – “elected member induction” –“ elected members and developers” –“ financial ratios” –“ guide to planning” –“ changing boundaries” –“ lawyers / legal advice for elected members” – “ local laws” –“public question time” – “net current assets” –“ differential rates” –“ rating policies” –“ credit cards” –“ grants commission”


Inspection of records and access to documents relating to guidance to the legislative and operational requirements associated with the inspection of and access to documents relating to licensed premises that are held by the licensing authority see here.



Local Policies

Payments to employees in addition to contract or award

A local government is to prepare a policy, which complies with the s5.50 requirements in relation to employees whose employment with the local government is finishing: s5.50 Local Government Act 1995.


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