A GINGIN councillor who was found in 2024 to have committed a minor breach of the Local Government (code of conduct) Regulations 2021 has had the decision and a sanction, which would have required him to apologise to a former shire employee, set aside.
Councillor Lincoln Stewart, who operates a wildlife sanctuary in the Shire of Gingin, applied to the State Administrative Tribunal (SAT) for a review of both the breach and the sanction decisions on January 19 last year.
Back in March 2024 the Local Government Standards Panel received notice of a minor breach complaint made by Phillip Barrett who was, at the relevant time, an employee of the Shire of Gingin with the complaint relating to a telephone conversation on February 14, 2024 between Cr Stewart and Mr Barrett and a text message received by Mr Barrett later that day that he believed had been sent to him by the councillor.
The standards panel found on June 10, 2024 that Cr Stewart had committed a minor breach in accordance with the Local Government Act 1995 and reg 20 of Div 4 of the Local Government (model code of conduct) Regulations 2021 in relation to the telephone conversation on February 14, 2024 but that he did commit a minor breach in relation to the text message received by Mr Barrett.
After hearing evidence from Cr Stewart and Mr Barrett the SAT review heard on November 18, 2025 and delivered on February 16 this year ordered that the standards panel decision delivered on August 8, 2024 be set aside and its decision on December 17, 2024 that Cr Stewart be ordered to give a public apology also be set aside.
When outlining background to the decisions SAT said the WA Attorney General (the Intervenor) had intervened in the proceeding in accordance with s 37(1) of the State Administrative Tribunal Act 2004 (Act).
“Consistent with the usual approach in such proceedings, the (standards panel) has taken no active role in the proceeding beyond providing the documents required to be lodged pursuant to s 24 of the Act.
“In view of the standards panel’s limited role, the Intervenor acts as a contradictor in the proceeding.’’
SAT said the Intervenor’s statement of issues, facts and contentions (SIFAC) lodged on June 5, 2025 framed the issues before the tribunal which Cr Stewart agreed were the relevant issues in his SIFAC lodged on August 8, 2025.
The two principal issues were whether the applicant (Cr Stewart) committed a minor breach, within the meaning of s 5.105 of the LG Act by contravening cl 20 of the model code and if so, what was the correct and preferable decision as to any sanction to impose under s 5.110(6) of the Act.
SAT said the first principal issue above was dependent upon the following five sub-issues 1) whether the Cr Stewart was a councillor of the shire at all material times, 2) whether Mr Barrett, was a local government employee acting in his capacity as a local government employee at all material times, 3) whether the applicant, in the telephone conversation on (February 14, 2024) made the comment alleged by Mr Barrett in the complaint, 4) whether Cr Stewart ‘s conduct amounted to a threat and 5) whether Cr Stewart subjectively intended to influence Mr Barrett in his capacity as a shire employee.
Early in the hearing the Intervenor indicated to the tribunal that it objected to the tendering by Cr Stewart of witness statements from some people who had signed witness statements that were lodged in the proceeding, but who were not called to give evidence at the final hearing.
But SAT said the Intervenor was content for the written statements to remain in evidence on the basis of the tribunal’s observations at the hearing that the statements included, on the face of it, very little evidence relevant to the matters in issue and it would consequently be a question of what if any weight ought to be attributed to them.
Eventually in its consideration SAT said the witness statements provided by MLC Amanda Dorn, Ray O’Connor, Kerry Butler, Jason Weeks and Cr Frank Peczka were given no weight in the reasons for the decisions.
SAT said their witness statements did not address the substance of the telephone call in any way that assisted in determining whether (Cr Stewart) said the words alleged in the complaint.
“To the extent various of the statements include unnecessary and irrelevant information as to previous grievances with one or more employees of the shire, they do nothing more than to add to the problematic history between the applicant and Mr Barrett that was already apparent from the evidence of those witnesses that did attend the hearing,’’ SAT said.
The SAT member said based upon the documentary and witness evidence at the hearing he was satisfied it was more likely than not that Cr Stewart in the course of the conversation with Mr Barrett on February 14, 2024 said words to the effect that the wildlife sanctuary had ‘trained 40 people in the past two weeks, he [the applicant] had Roger Cook on his side and would notify Channel 9 if it [the black walk] didn’t go ahead’.
“The words alleged to have been said by the applicant were recorded by Mr Barrett in the complaint form, which he completed on February 29, 2024,’’ the SAT member said.
“While the (Cr Stewart) questioned Mr Barrett as to the delay in completing the form, I accept his evidence that he completed the written complaint form as soon as practicable after it had been received by him and did so with the benefit of contemporaneous notes.
“Mr Barrett did not waver in his evidence that these were the words said, nor was this challenged by (Cr Stewart) in his extensive cross-examination of Mr Barrett.
“Throughout his evidence at the hearing, Mr Barrett was clear, concise and balanced, including in answer to the extensive questions from (Cr Stewart), which appeared to be directed at challenging Mr Barrett’s authority and decisions in relation to access to bushfire affected areas.’’
“In respect of those witnesses called by (Cr Stewart) to give evidence at the hearing, including himself, each has lodged statements in the course of both the panel’s process and the tribunal proceedings that include significant adverse comments in relation to Mr Barrett.
“Particularly from the statements of the applicant and (Hayden) Van Der Meulen, it is clear that there has been previous issues and longstanding animosity, between (Cr Stewart) and Mr Barrett.
“The statements of (Cr Stewart), Mr Van Der Meulen and a number of the persons who had signed statements, but not been required to attend the final hearing, also ventilate significant grievances and allegations against other senior staff of the shire.
“These grievances and allegations have no relevance to the issues for determination by the tribunal.
“However, the focus on prior grievances and allegations is indicative of a shared dislike of Mr Barrett and a common view that he was making decisions that were incorrect, unauthorised and discriminatory against (Cr Stewart) and his wildlife sanctuary.
“In my view, this adversely impacts upon the credibility of the evidence relied upon by (Cr Stewart) as to the conversation on February 14, 2024.
“The evidence of (Cr Stewart), (Marlene) Smith and Mr Van Der Meulen was all consistent that there were a number of people, other than them, who were also present when the February 14, 2024 conversation was taking place on speakerphone.
“However, none of those other witnesses lodged statements in the tribunal proceeding in relation to the telephone call and specifically the words alleged in the complaint to have been said by (Cr Stewart).
“In relation to the evidence of Ms Smith, she acknowledged at the hearing that she has some memory issues.
“In respect of a number of her answers in cross-examination regarding whether certain things were said by (Cr Stewart), her evidence was that she did not hear those things being said, rather than those things certainly not having been said.
SAT said Mr Van Der Meulen’s evidence included confirmation of (Cr Stewart) having made references to volunteers being trained for the black walk, that he’d engaged with members of parliament and that he would be speaking to the media and specifically, to Channel 9.
“Relevant to the context of the call on February 14, 2024, (Cr Stewart’s) evidence included that a great deal had been done to arrange the black walk and that members of parliament had been engaged.
“While (Cr Stewart) in cross-examination said that he ‘100 per cent did not refer to the Premier in the phone call at all’, this is contradicted by (Cr Stewart’s) statement of issues, facts and contentions (SIFAC).
In that document, which responds to the Intervenor’s SIFAC in great detail, (Cr Stewart) states: The applicant ((Cr Stewart) did not say the Premier was “on his side”; he accurately stated that “Roger Cook was aware of the black walk,” which was already publicly known through MP engagement in the animal welfare caucus.
“In my view, the combined effect of the evidence of the applicant, Ms Smith and Mr Van Der Meulen, on balance, is that it is generally supportive of the words, as alleged by Mr Barrett, having been said during the phone call on February 14, 2024.
The evidence from those witnesses called by (Cr Stewart) certainly does not, in my view, support any finding that it is more likely than not that those words, or words to the same effect and with no material difference, were not said by the applicant.
“I arrive at this view with regard also to: a) the inconsistencies between the evidence of (Cr Stewart), Mr Van Der Meulen and Ms Smith as to whether certain things were or not said during the conversation on February 14, 2024, b) the close relationships between (Cr Stewart) and each of Ms Smith and Mr Van Der Meulen, c) there being no evidence called from the other apparent witnesses to the telephone call on February 14, 2024 as to whether or not (Cr Stewart) made the comments the subject of the complaint and d) the previous history between (Cr Stewart) and Mr Barrett and the adverse views of Mr Barrett already held by both Ms Smith and Mr Van Der Meulen as addressed in their witness statements.’’
SAT said the next issue for consideration was then whether, by saying those words a) (Cr Stewart’s) conduct amounted to a threat and b) (Cr Stewart) subjectively intended to influence Mr Barrett in his capacity as a shire employee.
“At the end of his signed statement lodged with the tribunal, Mr Van Der Meulen stated that: Finally, please note that aside from Lincoln, none of us are bound by the Local Government Act or the elected member code of conduct,’’ SAT said.
“However, it is precisely by reason of the provisions of the LG Act and the model code that local government councillors must be particularly careful in their dealings with local government employees.
“This matter involves a telephone call between (Cr Stewart), while he was both a councillor of the shire and the co-owner and a director of his wildlife sanctuary and a senior employee of the same shire.
“The wording of clause 20 of the model code requires, for the purposes of the subject action to constitute a breach, that the local government employee involved in the circumstances is not just an employee but is acting in their capacity as an employee.
“The same is not required in respect of the councillor – that is, a breach by a councillor occurs as a result of the councillor engaging in prohibited conduct, irrespective of whether it occurs in the course of their work as a councillor or otherwise.
“Particularly in light of the past history between (Cr Stewart) and Mr Barrett and also the past history referred to by Mr Van Der Meulen and others who provided statements in support of (Cr Stewart), the making of the telephone call on February 14, 2024 came with an obvious risk in circumstances where (Cr Stewart) was a councillor speaking to an employee of the shire in that person’s capacity as an employee.
“While the tribunal appreciates the admirable work of the wildlife sanctuary of which (Cr Stewart) is a director and co-owner, that role and the pursuance of that work should be carefully managed to avoid the applicant’s conduct as a councillor being called into question by reason of his direct engagement with a senior employee of the shire.
“In the course of his evidence, (Cr Stewart) explained that the mobile phone number, from which both the telephone call and the text message the subject of the complaint originated, was the phone number for his animal sanctuary and was routinely used by other people there.
“Likewise, Mr Van Der Meulen states in his witness statement: The phone number used to send the text message in question belongs to our wildlife business phone, which is used daily by various staff members.
“As also explained by Mr Van Der Meulen, the relevant mobile number appears in an online post as the contact number for the animal sanctuary and the same phone number is set out on the side of a vehicle used by the sanctuary as the contact number for ‘Wildlife Rescue Response Unit’.
“However, in email correspondence from (Cr Stewart’s) email address, the same mobile phone number is provided as the applicant’s direct phone number.
“That a phone number recorded as being (Cr Stewart’s) direct contact number as a councillor would be also used by a mobile phone freely available to others at the wildlife sanctuary is an unfortunate blurring of the applicant’s responsibilities.
“It clearly also exposed (Cr Stewart) to significant risks, such as that arising from the sending of the patently threatening text message referred to in the complaint.
“The telephone call on February 14, 2024 also took place in circumstances where (Cr Stewart), in his role with the wildlife sanctuary, had a very strong desire for the black walk to proceed in order to locate and rescue injured wildlife and where he, and others, had put significant time and effort to arranging the event.
“The call also occurred when, as was clear from the (Cr Stewart’s) evidence, he did not believe he required approval from Mr Barrett for the black walk, did not believe Mr Barrett was authorised to make any such decision in any event and (Cr Stewart) had significant other prior grievances with Mr Barrett.
“The prospects of that call going poorly ought to have been obvious.
“However, in respect of the words actually used by (Cr Stewart) in the February 14, 2024 telephone call with Mr Barrett, I am not satisfied that: a) those words amounted to a threat or b) by saying those words, (Cr Stewart) subjectively intended to influence Mr Barrett in his capacity as a shire employee.
SAT said the text message sent shortly after the telephone call on February 14, 2024 did not result in a finding of minor breach as the standards panel accepted, on the evidence before it, that the text message was not sent by (Cr Stewart).
“However, that text message was clearly threatening, noting that it stated in effect, that Mr Barrett’s emails would be published in the media and his face would be publicised.
“In this proceeding, the sending of the text message is not the subject of the application for review and the clear evidence is that it was sent by Ms Smith, rather than (Cr Stewart).
“As a result, the words said by (Cr Stewart) in the telephone call on February 14, 2024 are to be considered without reference to the subsequent text message.
“Starting with the words in relation to there having been a significant number of volunteers trained for the black walk, those words reflect the true position at the time.
“In my view, there is nothing in the saying of those words that constitutes a threat, either on their own or together with the balance of the words said.
“In respect of the reference to the Premier being ‘on side’, the evidence supports the position that (Cr Stewart) understood from others, including other members of parliament, that this was the case.
“Again, I am not satisfied that the saying of those words constitutes a threat, either on their own or together with the balance of the words said.
“As to the last part of the words regarding Channel 9 being notified if the black walk did not go ahead, there is no suggestion in the evidence before the tribunal that (Cr Stewart) threatened to name Mr Barrett in any such notification to the media.
“While the subsequent text message sent by Ms Smith did threaten to do precisely that, the text message cannot be relied upon to extend the normal meaning of the words that were actually said during the telephone call.
“Where the evidence makes clear that there was a level of media interest in the black walk, it might be unsurprising to say that the media would be advised if the black walk was not in fact proceeding.
“In the way the words in this regard were said by (Cr Stewart), I am not satisfied that they constituted a threat.
“In particular, there is not alleged to have been any statement by (Cr Stewart) during the telephone call to the effect that he would give Mr Barrett’s name to the media and/or tell the media that the black walk was not proceeding because of a decision made by Mr Barrett.
“In addition to finding that the words said by (Cr Stewart) did not amount to a threat, I am also not satisfied that, by saying the relevant words during the February 14, 2024 telephone call, it is more likely than not that (Cr Stewart) subjectively intended to influence Mr Barrett in his capacity as a shire employee.
“(Cr Stewart’s) evidence was that he telephoned Mr Barrett on February 14, 2024 for the purpose of inquiring as to whether Mr Barrett would authorise the use of a fire tanker to support the black walk.
SAT said (Cr Stewart’s) evidence was that, at the time of the call, he had not read the letter from Mr Barrett dated February 13, 2024 in which Mr Barrett advised that he was not authorising any member of the public to enter the bushfire area.
(Cr Stewart’s) evidence was also that he did not believe that Mr Barrett had any authority to prevent the black walk from proceeding and that, to the extent Mr Barrett intended to do so, it was an incorrect decision in addition to being made without proper authority.
“The evidence before the tribunal, and the extensive cross‑examination of Mr Barrett by (Cr Stewart), demonstrates that he was strident in his view that Mr Barrett was not authorised to stop the black walk from proceeding and any such decision to do so was incorrect and discriminatory.
“To the extent the telephone call then addressed such a decision by Mr Barrett the evidence, on balance, is that it involved discussion as to why (Cr Stewart) disagreed with Mr Barrett’s authority to make any decision to prevent the black walk proceeding and his reasons for doing so.
“However, I am not satisfied that this constituted a subjective attempt by (Cr Stewart) to influence Mr Barrett through the making of any threat, as opposed to a significant disagreement between the two about what should or should not happen.
“The effect of (Cr Stewart’s) evidence was that any purported decision by Mr Barrett was simply an obstacle that the applicant would then seek to confront, including by way of his subsequent email to Mr Barrett, sent via the CEO in accordance with the usual processes.
“While this email itself included further indications of a potential clash between (Cr Stewart’s) wildlife sanctuary and councillor roles and the consequential risk of inappropriate engagement with and in respect of shire employees, it does not demonstrate any subjective intention to influence Mr Barrett by way of a threat.
“By reason of the matters set out above, I am satisfied and find that, while the applicant in the course of the February 14, 2024 telephone call said the words as alleged in the complaint, or words with no material difference, the applicant’s actions in this regard did not constitute conduct in breach of clause 20 of the model rules.
“It follows that both the breach decision and the sanction decision are to be set aside.’’
