TMR has written extensively about Perth Lord Mayor Lisa Scaffidi’s grubby conduct.

Today, the WA State Administrative Tribunal (Tribunal) has finally found Scaffidi guilty of 45 serious breaches of the Local Government Act 1995 (WA). A full copy of the decision can be found here.

The sheer brazenness of Scaffidi’s conduct in this matter has been utterly disgraceful.

Not the full nine yards

The important thing to note about this decision is that Scaffidi has only been found guilty of serious breaches in respect of her failure to disclose various gifts and benefits. This is all that the Tribunal was able do.

See pargraph 58 of the decision for example (where it cites the Department of Local Government’s proposal made in 1990 before the Act was passed):

The community is entitled to expect that decisions made by local governments are fair and impartial, and that the conduct of elected members is beyond reproach. The pecuniary interest provisions outlined later in this Chapter paper specifically exclude councillors from voting on matters in which they have a financial interest. As at present, safeguards relating to corruption will continue to be the province of the Criminal Code rather than the Local Government Act.

And this at paragraph 75:

It is not suggested that there was any corruption by Ms Scaffidi or that the gifts and contributions made to her were corrupt or an attempt to exert improper influence. However, what lies at the heart of the disclosure regime mandated by the LG Act is the prevention of corruption or improper influence by a councillor. Nothing is more corrosive of the body public than corruption. Disclosure regimes are a common element at all levels of government, for example, Members of Parliament (Financial Interests) Act 1992 (WA).

The disclosure regime provided by the LG Act in relation to relevant persons minimises the risk of corruption or improper influence by requiring disclosure and thus accountability by relevant persons.

Calling Chief Wiggum

Of course, this then begs the question – will the police and the Department of Public Prosecutions now follow this matter up in light of the fact that:

• Scaffidi was found to have breached her disclosure obligations on 45 separate occasions;

• the gifts and benefits received were substantial;

• the Tribunal rejected her claim of ‘honest and reasonable mistake of fact’ in respect of various breaches:

 

Honest and Reasonable mistake of fact:

130 Section 24 of the Criminal Code requires an honest and reasonable belief which requires this Tribunal to make findings as to Ms Scaffidi’s credibility. Had s 24 not been relied on, it would have been unnecessary to make such a finding.

…

139 In summary, we find that if we are incorrect and a s 24 defence is available to Ms Scaffidi, it is not enlivened on the basis that she did not honestly hold a positive belief as to who had made the relevant payments and in particular, the absence of a third party contribution. Additionally, even if such a belief had been established on the evidence, we find that it could not have reasonably been held. This is because, given Ms Scaffidi’s knowledge at the relevant times as illustrated by the documents referred to above, she ought to have made enquiries and satisfied herself as to whether third party contributions to expenses were being made. A failure to make enquiries and effectively plead ignorance, is not capable of establishing an honest and reasonably held belief. In the circumstances therefore, the defence is unsuccessful.

AND (wait for it)…

• the WA Crime and Corruption Commission formed opinions of ‘misconduct’ and ‘serious misconduct’ of Ms Scaffidi’ in relation to various gifts and benefits (as defined in section 4 of the Corruption, Crime and Misconduct Act 2003 (WA) (CCC Act) (see paragraph 158 of the Tribunal’s decision); and

• section 4 of the CCC Act defines ‘misconduct’ as follows (with ‘serious misconduct’ being defined as anything under subsections (a), (b) or (c)):

Misconduct occurs if —

(a) a public officer corruptly acts or corruptly fails to act in the performance of the functions of the public officer’s office or employment; or

(b) a public officer corruptly takes advantage of the public officer’s office or employment as a public officer to obtain a benefit for himself or herself or for another person or to cause a detriment to any person; or

(c) a public officer whilst acting or purporting to act in his or her official capacity, commits an offence punishable by 2 or more years’ imprisonment; or

(d) a public officer engages in conduct that —

(i) adversely affects, or could adversely affect, directly or indirectly, the honest or impartial performance of the functions of a public authority or public officer whether or not the public officer was acting in their public officer capacity at the time of engaging in the conduct; or

(ii) constitutes or involves the performance of his or her functions in a manner that is not honest or impartial; or

(iii) constitutes or involves a breach of the trust placed in the public officer by reason of his or her office or employment as a public officer; or

(iv) involves the misuse of information or material that the public officer has acquired in connection with his or her functions as a public officer, whether the misuse is for the benefit of the public officer or the benefit or detriment of another person,

and constitutes or could constitute —

[(v) deleted]

(vi) a disciplinary offence providing reasonable grounds for the termination of a person’s office or employment as a public service officer under the Public Sector Management Act 1994 (whether or not the public officer to whom the allegation relates is a public service officer or is a person whose office or employment could be terminated on the grounds of such conduct).

This matter simply cannot rest here. A person holding the office of Perth Lord Mayor cannot simply fail to disclose hundreds of thousands of dollars worth of gifts and benefits (on 45 separate occasions), have findings of serious misconduct made against them by both the CCC and the Tribunal and not have their conduct investigated as a serious crime.

Of course, only time will tell whether WA’s law enforcement will be prepared to put the doughnuts down for long enough to do their job.

Make your own mind up

In the meantime, feel free to conduct your own pub test using the following facts taken from TMR’s archives:

• Scaffidi accepted tens of thousands of dollars worth of gifts for her personal benefit.

• Those gifts were given to her due to her role as Perth Lord Mayor. Let’s go to BHP’s own ‘strategy’ to help here:

“BHPB’s strategy for accomplishing its objectives included ‘utilising Olympic hospitality to motivate China-based stakeholders, including customers, suppliers, government and media, to enhance business opportunities for BHP Billiton in China’ and ‘utilising Olympic hospitality to build relationships with stakeholders from product and investor markets, and regions where we have or would like to have operations.”

I’ll give you a moment to go and throw up on that one…

And we’re back:

• She didn’t disclose the personal benefits she received and took steps to hide the truth:

“At all events her actions subsequent to 31 August 2009, including telling a journalist the trip was personal, and falsely informing Mr Fletcher [of BHP], “of course its been registered”, were evasive.

“Because of the number of inconsistent explanations that Mrs Scaffidi has proffered, the Commission is unable to be satisfied that her motive and purpose for accepting the Olympic package was to advance the interests of the City.

• She decided to pocket the gifts rather than decline them:

“It is more probable than not Mrs Scaffidi became aware she should not accept, or alternatively should withdraw from, the trip but chose instead to avail herself of the opportunity of an all-expenses paid trip to the Olympics followed by a side trip to Shanghai, where she paid for her own accommodation.”

• She made decisions in her capacity as Lord Mayor which favoured the donors of the gifts – in close proximity to those gifts being given. For example:

On 22 April 2008, the newly elected Lord Mayor of the City of Perth (“the City”), Mrs Lisa Scaffidi, having declared an impartiality interest, voted with Council in favour of an application by BHP Billiton Ltd (BHPB) to waive a hire fee of $22,100 to use Forrest Place for the Olympic Live Site. At the time Mrs Scaffidi had been offered, and two days later formally accepted from BHPB, an Olympic Hospitality Package comprising an all-expenses paid trip to the 2008 Summer Olympic Games held in Beijing, China. The value of this package as estimated by BHPB was at least US$36,826. 

Did she pass?

Scaffidi punches on

Consistent with her previous statements, Scaffidi continues to show no remorse whatsoever:

Perth Lord Mayor Lisa Scaffidi has said she did not act dishonestly when she breached the Local Government Act 45 times.

The State Administrative Tribunal today upheld allegations that Ms Scaffidi breached the Local Government Act dozens of times by accepting prohibited gifts and failing to properly declare others.

In a lengthy statement posted on Twitter, Ms Scaffidi responded to the tribunal’s decision.

“As I have maintained from the outset, I did nothing dishonestly but I accept I had not disclosed appropriately as it was interpreted as all being in the line of duty,” she said.

“Notwithstanding that the City of Perth clearly knew of all travel and that is clear in the findings.

“I have always acknowledged that a penalty needs to be imposed – the issue remains what the appropriate penalty will be.”

As for what penalty will be imposed for Scaffidi’s 45 failures to disclose, this will determined following a separate hearing. I know which one of the following options I would choose:

Penalties for serious breach 53 Section 5.117 of the LG Act provides that where the Tribunal is satisfied that the person against whom an allegation was made had committed a serious breach it can make one or more of the following orders:

a) that the person be publicly censured;

b) that the person apologise publicly; 

c) that the person undertake specified training;

d) that the person be suspended for a period of not more than six months; or

e) that the person be disqualified from holding office as a member of a council for a period of not more than five years.

The determination of an appropriate penalty for Ms Scaffidi will be dealt with at a separate hearing (Rush v WA Amateur Football League (Inc) [2007] WASCA 190, Buss JA at [122] on).

(ref: paragraphs 53 and 54)

Sadly (and curiously), a lifetime ban isn’t on the table from what I’ve read.

Regardless, something tells me that Scaffidi will appeal this decision and that there’s some way to go yet.