BROUGH and LOCAL GOVERNMENT STANDARDS PANEL [2026] WASAT 101

[2026] WASAT 101 Page 1 JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : LOCAL GOVERNMENT ACT 1995 (WA) CITATION : BROUGH and LOCAL GOVERNMENT STANDARDS PANEL [2026] WASAT 101 MEMBER : MS N EAGLING, MEMBER HEARD : 21 JULY 2026 DELIVERED : 31 JULY 2026 PUBLISHED : 27 AUGUST 2026 FILE NO/S : CC 335 of 2025 BETWEEN : THOMAS BROUGH Applicant AND LOCAL GOVERNMENT STANDARDS PANEL Respondent ATTORNEY GENERAL Intervenor Catchwords: Ability to comply with a requirement to complete a training course which does not exist - Legal impossibility - Utility Legislation: Local Government (Model Code of Conduct) Regulations 2021 (WA), cl 8(1)(a), -- 1 of 13 -- [2026] WASAT 101 Page 2 cl 10(b), cl 23 Local Government Act 1995 (WA), s 5.110(6), s 5.110(6)(a), s 5.125(1) State Administrative Tribunal Act 2004 (WA), s 27, s 29, s 29(3)(c)(ii), s 31(1), s 37(1) Result: Application for review allowed Category: B Representation: Counsel: Applicant : Mr T Houweling Respondent : Mr G Stockton Intervenor : Mr G Stockton Solicitors: Applicant : Cornerstone Legal Respondent : State Solicitor's Office Intervenor : State Solicitor's Office Case(s) referred to in decision(s): Ballina Shire Council v Joblin [2022] NSWLEC 90 Christian v Sawka [2011] WASC 100 Horton v Burton [1999] WASCA 82 Southwell and Local Government Standards Panel [2019] WASAT 128 -- 2 of 13 -- [2026] WASAT 101 Page 3 REASONS FOR DECISION OF THE TRIBUNAL: (The application was heard on 21 July 2026. An oral decision was delivered on 31 July 2026. The following reasons comprise the reasons that were delivered orally, subject only to minor editing to improve clarity of expression and setting out.) Introduction 1 At all material times Councillor Brough (Councillor Brough or applicant) was a councillor for the City of Albany (City). 2 On 21 May 2025 the applicant applied to the Tribunal under s 5.125(1) of the Local Government Act 1995 (the Act) for review of a decision of the Local Government Standards Panel (Panel or respondent). 3 The Intervenor filed a Statement of Agreed Issues and Facts on 25 May 2026 (Statement of Agreed Facts) which states that the question raised by this review is: What is the appropriate sanction for the applicant contravening clause 23 of the Local Government (Model Code of Conduct) Regulations 2021 (WA) (Model Code) by not complying with a requirement of a plan under clause 12(b) of the Model Code prepared and implemented by the Council of City of Albany (City) in relation to the applicant on 25 June 2024? (Plan) 4 However, as will be addressed in these reasons, the question to be determined is wider than the question posed in the Statement of Agreed Facts and extends to whether a breach of the Plan occurred. 5 As a matter of practicality, the real issue which the Tribunal must determine is whether it was impossible for the applicant to comply with the requirement in the Plan to 'Conduct Respectful and Inclusive Workplace Training provided by the Australian Human Rights Commission' (AHRC). 6 The matter was heard in the Tribunal on 21 July 2026. Councillor Brough was represented by Mr Houweling from Cornerstone Legal. 7 As is appropriate in reviews of this type, the Panel did not play an active role in the hearing due to the possibility that exists where the Tribunal may invite the Panel to reconsider its decision (s 31(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act)) and -- 3 of 13 -- [2026] WASAT 101 Page 4 the powers of the Tribunal on a review include the power to remit the matter back to the Panel for reconsideration (SAT Act, s 29(3)(c)(ii)). The Panel's role was therefore confined to producing the s 24 bundle of documents. 8 In view of the Panel's limited participation in the hearing, the Tribunal was assisted by the intervention of the Attorney-General of Western Australia (Intervenor) pursuant to s 37(1) of the SAT Act who acted where necessary as a contradictor to the case presented by the applicant. 9 A Hearing Book of relevant documents was compiled by the Tribunal and was tendered as Exhibit 1. The Tribunal now gives its oral reasons for decision in relation to the matter. Background and Facts 10 This summary is based on uncontentious documents and in particular on the Statement of Agreed Facts filed by the Intervener on 25 May 2026. 11 This matter has a long history. It arises out of a statement made by Councillor Brough at a council meeting on 27 February 2024 that 'minor-attracted persons' have been able to claim they are part of the '+' within the LGBTQIA+ acronym (statement). Unsurprisingly perhaps, objection was taken to the statement by some community members who made complaints to the local government (complaints). 12 The City engaged an independent complaints assessor who provided a report in relation to the complaints in or around May 2024 and which found that the applicant had contravened clauses 8(1)(a) and 10(b) of the Local Government (Model Code of Conduct) Regulations 2021 (WA) (Model Code) by making the statement. 13 On 25 June 2024, the City resolved to adopt: (a) The findings against the applicant in the independent report; and (b) The Plan, prepared under the Model Code, requiring that the applicant: (1) apologise for hurt and distress caused by the Statement; and (2) undertake certain training provided by the AHRC. 14 It is agreed that the applicant has not completed the training required by the Plan. -- 4 of 13 -- [2026] WASAT 101 Page 5 15 On or about 5 September 2024 a complaint was made to the Panel by the City's complaints officer that the applicant had contravened clause 23 of the Model Code by non-compliance with the Plan. 16 On 2 January 2025 the respondent found that the applicant had not complied with the Plan and therefore had committed a minor breach. 17 On 28 April 2025, the respondent published reasons for decision in relation to its sanction against the applicant. Most relevantly, Order 2 of the Panel's decision stated: Training: 2. Within 4 months of the date of this order [the applicant] a councillor for the Town of Port Hedland, shall undertake: a. The training course, 'The Respectful and Inclusive Workplace Training' provided by the AHRC for a period of no less than 7 hours, attending either in person or via e-learning (if available); or b. A training course with substantially similar learning outcomes provided by an alternative registered training organisation as approved by the City of Albany. 18 It is common ground that the reference to the Town of Port Hedland in paragraph 2 above should be a reference to the City and nothing turns on this. 19 It is also agreed that the AHRC did not and does not provide a training course entitled 'The Respectful and Inclusive Workplace Training'. 20 It is further agreed that the applicant has completed two diversity, equity and inclusion training modules through the WA Health Equity, Division and Inclusion (EDI) Learning Suite in his capacity as a medical doctor namely: 'EDI:LGBTIQ+' on 10 June 2025 and 'EDI: Gender Equality in the WA Health System' conducted over 2 days and completed on 13 June 2025. 21 On 17 November 2025 the Tribunal made the following order in relation to a preliminary question which it had programmed to be determined in the course of these proceedings: 1. The answer to the preliminary question is 'no': -- 5 of 13 -- [2026] WASAT 101 Page 6 In reviewing a decision of the Local Government Standards Panel that a councillor has contravened clause 23 of the [Model Code] does the Tribunal have jurisdiction to review the decision of the local government which led to the preparation and implementation of a plan under clause 12(4)(b) of the Model Code? The decision of the Panel 22 It is helpful in this matter to examine the reasons for decision of the Panel in greater detail. The Panel noted the penalty imposed by the City - namely an apology and training. It stated that the applicant 'refused to comply with the Council's decision'. 23 The Panel said that failure to comply with a Division 3 plan 'indicates a lack of respect for a decision of Council' and went on to say that in these circumstances the Panel considers that the appropriate sanctions are that the applicant: (a) undertake the sanctions which were properly imposed by the Council in respect to the Division 3 complaint being: (i) undertaking training; and (ii) providing an apology; (b) pays to the local government a sum of money to recoup the local government's expenses in dealing with the complaint as making a further complaint to the panel in such circumstances should not have been necessary. 24 The Panel stated that the original sanctions considered and imposed were appropriate and should be upheld. It then noted that it had been advised that the apology portion of the decision had been completed as at the date of the Panel's decision and went on to say, 'as such, the training portion of the sanction originally issued by the city is replicated in the orders attached to this decision'. This therefore suggests that the Panel intended to replicate the training requirements imposed by the City. 25 Although the Panel noted that the apology had been given, it is not clear when it was given. The Statement of Agreed Facts also does not address this issue. 26 The Panel went on to say at paragraph 20 that '[i]n addition, the Panel considers that it is appropriate that [the applicant] provide -- 6 of 13 -- [2026] WASAT 101 Page 7 a public apology due to his initial refusal to comply with the order of the Council resulting in the matter being required to be referred to the Panel' (referred to in these reasons as the additional apology to distinguish it from the original apology in the Plan). 27 The Panel also imposed a penalty relating to costs although those were not quantified. 28 It is therefore clear that the Panel imposed further sanctions (the additional apology and costs) over and above those originally imposed by the City based on their view that the applicant 'refused to comply with the Council's decision'. 29 The terms of the additional apology were set out in the Panel's decision and refer to a failure to comply with the relevant Division 3 Plan. However, the reasons do not clarify whether this failure was due to the original apology being late or to the failure to complete the training or both aspects. However, at the hearing the applicant and Intervenor both agreed that the additional apology was in relation to the training. 30 The exact wording of the Panel's decision as to training was set out earlier in this decision. The Panel's description of the training requirement differs from that of the City. 31 The decision of the City is set out in paragraph 1(b) of the applicant's submissions filed on 25 June 2026 and states: Conduct Respectful and Inclusive Workplace Training provided by the Australian Human Rights Commission. 32 As noted, the Panel stated in its reasons for decision that it sought to replicate the training requirement in its decision, however the Panel's description differs slightly. Legislation 33 The relevant statutory provisions of the Act are set out in the decision of the Tribunal in Southwell and Local Government Standards Panel [2019] WASAT 128 at [24] - [33] and I gratefully adopt that summary of the legislation. 34 The Tribunal noted at the outset of the hearing that the legislation had recently been amended, however it was agreed by the parties and -- 7 of 13 -- [2026] WASAT 101 Page 8 the Tribunal finds, that these amendments do not affect the task of the Tribunal in this proceeding. Issue/Role of the Tribunal 35 The application is brought under s 5.125(1) of the Act which permits a party to apply to the Tribunal for a review of a decision of the Panel to make an order under s 5.110(6) of the Act. I accept the submission of the Intervenor that it may be appropriate for the Tribunal to review both the decision on whether the breach alleged in the complaint occurred and the decision to make an order under s 5.110(6). 36 The Tribunal is reviewing the decision of the respondent Panel. As noted at paragraph [21] in these reasons, the applicant and the Intervenor have agreed that this decision is not reviewing the decision of the local government which led to the preparation and implementation of the Plan in the first place. Therefore this decision makes no comment on the original decision of the City to make a Plan under the Model Code to address the statement made by Councillor Brough. 37 However, the Tribunal must, when reviewing the decision of the respondent as to breach and penalty, consider whether the applicant breached the Plan which necessarily entails a consideration of the Plan itself which was made by the City (and not the respondent). 38 The review is by way of a hearing de novo and the purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review: SAT Act, s 27. 39 Section 29 of the SAT Act provides that the Tribunal has functions and discretions corresponding to those exercisable by the decision-maker in making the reviewable decision and that the Tribunal may: (a) affirm the decision that is being reviewed; or (b) vary the decision that is being reviewed; or (c) set aside the decision that is being reviewed and - (i) substitute its own decision; or (ii) send the matter back to the decision-maker for reconsidering in accordance with any directions or -- 8 of 13 -- [2026] WASAT 101 Page 9 recommendations that the Tribunal considers appropriate, and, in any case, make any order the Tribunal considers appropriate. Argument of the applicant 40 The primary position of the applicant is that the Plan and the subsequent orders made by the Panel were legally and factually impossible to perform as the course was never available. 41 The applicant relies on the legal maxim Lex non cogit and impossibilia - the law does not compel the doing of impossibilities. The applicant refers to several cases which it says supports its position, including two cases, where the maxim has been applied in the Supreme Court of Western Australia.1 The applicant further argues that the law of necessity in relation to this maxim does not form part of the law in Western Australia or, if it does, it is not applicable on the facts of this case. Argument of the Intervenor 42 The Intervenor submits that if the Tribunal accepts the applicant's submissions then no sanction should be imposed nor should there be a finding that the applicant has contravened clause 23 of the Model Code. 43 However, the position of the Intervenor is that it is open for the Tribunal to affirm the substance of the decision on the basis that it was not legally or factually impossible for the applicant to complete the training specified in the Plan. 44 The Intervenor's argument is that it was sufficient for the Plan to identify the type of training which the applicant was required to complete, which is what occurred in this case. At paragraph 32 of its submissions the Intervenor sets out its sequence of argument in this respect but in essence its argument appears to be that when looking at the entirety of the factual matrix, the reference in the Plan to the 'Respectful and Inclusive Workplace Training' provided by the AHRC was to a generic type of training rather than to the name of a specific course, or, alternatively that if it was a reference to the name of a specific course then the applicant could have found another more 1 See Horton v Burton [1999] WASCA 82. Christian v Sawka [2011] WASC 100. -- 9 of 13 -- [2026] WASAT 101 Page 10 general course if he had engaged with the process by attempting to do the course. 45 The Intervenor suggests that the Tribunal can just simply allow the application for review to the extent that it is necessary to correct two errors and otherwise dismiss the application for review. The two errors being the reference to Port Hedland and also to remove the reference to a training course which does not exist. 46 The Intervenor submits that the cases referred to in the applicant's submissions do not assist the applicant as each of the cases cited refers to the application of the maxim to an exercise of statutory construction. The Intervenor says further that to the extent that the cases apply then they actually assist the Intervenor (as the City should not be taken to have intended for the applicant to be required to do the impossible) and that, following McTiernan J in the decision of Dowell Australia Ltd v Archdeacon (1975) 132 CLR 417 a legal impossibility will not exist where a necessity is created by the applicant's own act and he has not used all practical endeavours to surmount the difficulties created by the relevant necessity. Findings of the Tribunal 47 In the Tribunal's view it can be accepted that the reference to Port Hedland rather than Albany is an error - but the Tribunal finds that the characterisation of the entire description of the training course as also being an error of a type that can simply be corrected cannot be accepted for the following reasons: (a) The reference appears on its face and by reference to its plain language and ordinary meaning, on any reasonable interpretation, to be to an actual training course. Even in the Plan, the course is referred to in capitals and a particular provider is referenced. This was developed further by the Panel who introduced the words 'the training course' before stating the name of what appears on its face to be a course. As previously noted, the Panel stated in its decision that it intended to replicate the earlier penalty imposed and certainly it appears that the Panel understood the reference in the Plan to be to a particular training course. Whilst this is of course not binding on the Tribunal it is a relevant factor to take into consideration. (b) To characterise the description of training as simply a generic category of training options would require, in the Tribunal's -- 10 of 13 -- [2026] WASAT 101 Page 11 view, some evidentiary basis. There is no evidence before the Tribunal about whether such generic training provided by the AHRC even exists. The Tribunal asked counsel for the Intervenor about this during the hearing and he agreed with the Tribunal that there was no evidence before the Tribunal as to what courses were available at the time (or are currently available) which match the generic description in the Plan. 48 The applicant could not fail to complete a training course which did not exist. In relation to the legal maxim, the law does not compel an impossibility, the Tribunal notes that neither party was able to refer it to any case which dealt with the application of this maxim to an order made by a local government and the Tribunal was unable to find one. 49 The Intervenor referred the Tribunal to the decision of Ballina Shire Council v Joblin [2022] NSWLEC 90 at [67] where Robson J stated, in the context of a criminal prosecution, that an order made by a City 'must convey clearly and unambiguously to the person to whom it is given what the person is being ordered to do or refrain from doing in order to comply'. In this case the Tribunal finds that the order did not clearly and unambiguously convey to the applicant what it was he was being ordered to do. 50 In Horton v Burton [1999] WASCA 82 Justice Pidgeon citing a New South Wales case that in turn cited Broom's Legal Maxims quoted the author of that text at paragraph 4 as follows: … The learned author of Broom's Legal Maxims, 10th ed, at p 162, after discussing the maxim 'Lex non cogit ad impossibilia' (Co Litt 231b) - The law does not compel a man to do that which he cannot possibly perform - concludes, at p 169: 'To several maxims in some measure connected with that above considered, it may, in conclusion, be proper briefly to advert. First, it is a rule, that lex spectat naturae ordinem: Co Litt 197b, the law regards the order and course of nature, …Secondly, it is a maxim of our legal authors, as well a dictate of common sense, that the law will not itself attempt to do an act which would be vain, lex nil frustra facit, nor to enforce one which would be frivolous - lex neminem cogit ad vana seu inutilia - the law will not force anyone to do a thing vain and fruitless: Laughter's Case, 5 Rep 21; Co Litt 127b, cited in Marson v Short, 2 Bing NC 118, at p 121; Wing Max, p 600, per Willes J, in Bell v Midland Ry Co, 10 CBNS 287 at p 306. -- 11 of 13 -- [2026] WASAT 101 Page 12 51 The same result is reached in this case whether it is by way of the application of the legal maxim, whether it is by a finding that the order did not clearly and unambiguously convey to the applicant what he was to do or whether a foundational basis for the legal maxim of legal impossibility (namely common sense) is applied. 52 Further, in the Tribunal's view the principle of necessity relied upon by the Intervenor cannot, in the Tribunal's view, apply in circumstances where the applicant has been asked to do a course chosen solely by the respondent, which simply does not exist. In these circumstances, in the Tribunal's view, it does not matter that the applicant never attempted to comply with the requirement. 53 As noted above, it is common ground that such a course does not exist and has never existed. In these circumstances the inclusion by the Panel of the alternate option in its description of the training also does not assist the respondent's case as it refers to a training course with 'substantially similar outcomes' to that of the specific training course. These outcomes are impossible to assess if the original course does not exist. The Intervenor did not seek to argue otherwise at the hearing. 54 The applicant has apologised in accordance with the Plan. Therefore, to the extent the applicant can comply with the Plan, he has complied with it. The Tribunal has not made any findings about the validity of the Plan and nor is it its role to do so. The Tribunal is limited to determining whether the applicant has breached the Plan. The Tribunal finds that the applicant has not breached the Plan. 55 In these circumstances, the issue of penalty falls away. 56 However, for the sake of completeness, the Tribunal notes that even if it had accepted the Intervenor's argument as to the nature of the course (namely that it is general and not specific) and even if the Tribunal had found that the Plan had been breached by the applicant not completing the training, the Tribunal still would have not make an order as to further training and would have made an order that no sanction be imposed under s 5.110(6)(a) of the Act. 57 In the Tribunal's view, the public apology which has already been given together with the training courses already completed by the applicant would mean that there is likely to be limited utility in further training. This is especially the case in this matter where, as the Tribunal has already observed, there is no evidence before the Tribunal -- 12 of 13 -- [2026] WASAT 101 Page 13 as to what training courses exist and no proposal by the respondent as to what training courses should be completed by the applicant. Orders The Tribunal orders: 1. The application for review is upheld. 2. The respondent's decision of 2 January 2025 is set aside and substituted with a decision that the applicant did not commit a minor breach of clause 23 of Schedule 1 to the Local Government (Model Code of Conduct) Regulations 2021 (WA). 3. The respondent's decision of 28 April 2025 imposing orders against the applicant under s 5.110(6) of the Local Government Act 1995 (WA) is set aside. 4. There is no orders as to costs. I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal. MS N EAGLING, MEMBER 27 AUGUST 2026 -- 13 of 13 --