Councils limited to censure action for CoC breaches
The NSW Supreme Court has recently handed down an important decision on the ability of Councils to discipline councillors for misconduct arising from Code of Conduct complaints made against them. The decision of Basten J confirmed the Local Government Act 1993 (NSW) generally limits Councils to censuring a councillor, and does not extend to other measures such as directing participation in training, counselling, directing the person to apologise, and making the finding of inappropriate conduct public, as currently set out at cl. 7.36 of the Procedures.
Background
The case arose from an appeal by a Penrith City Council councillor against a resolution of his Council to impose disciplinary measures against him arising from a Code of Conduct investigation into allegations he acted inconsistent with the Code of Conduct during 2 meetings of Council. When the councillor refused to comply with the disciplinary measures, including attending training and providing an apology, Council referred the matter to the then OLG, who in turn referred the conduct to NCAT. NCAT found the councillor had breached the Code of Conduct by failing to comply with Council’s disciplinary resolution and suspended his pay for 3 months. The councillor then appealed to the Supreme Court.
Decision
The Supreme Court found there was a distinct delineation in the powers to discipline misbehaving councillors between Councils, OLG and NCAT and resolutions of Councils inconsistent with this delineation will be invalid. Key determinations of the Supreme Court included:
1. The ability to formally censure a councillor for misconduct is the only general disciplinary power conferred upon Councils by the Act (s.440G).
2. The other measures set out at 7.36 of the Procedures such as directing participation in training, counselling, directing the person apologise, making the finding of inappropriate conduct public can only be imposed by the Department.This arises because:
The Procedures are unable to provide a source of disciplinary powers which are not otherwise provided by the Act; and
While measures such as an apology or seeking undertakings as to future conduct could be seen as providing a means of avoiding a stronger penalty, rather than specific disciplinary measures, the power of Councils to compel such measures must be able to be sourced back to a statutory power, which they do not possess.
3. However, other such disciplinary measures by the Departmental Chief Executive (under the power given by s.440I of the Act) are only possible after the preparation of a departmental report mandated under s.440H(6).
4. The power of NCAT to deal with ‘alternatives to disciplinary action’ referred from the Department under s.440J (as was the case in the current circumstances), including making a decision under s.482A(d) to suspend a councillor’s fees for up to 6 months, required it to conduct its own enquires as to the justification for the recommendations for disciplinary action. This is confirmed by the requirement of s.440J(2)(b) for NCAT referrals from the Department to be for ‘consideration’, rather than merely for a determination.
Given the approach by NCAT Principal Member Titterton to decline consideration of whether or not the sanctions imposed originally by Penrith City Council were appropriate, the Supreme Court set aside the NCAT orders.
Additional point: misconduct at meetings
While obiter, the Court briefly considered misconduct covered by the Code of Meeting Practice, with the Chair (Mayor) being conferred power to require a councillor to apologise or be expelled. Given the adoption of the Code of Meeting Practice by Councils pursuant to s.360 of the Act is on a similar basis to the Code of Conduct (s.440) and Procedures (s.440AA), it is very possible that an appeal by a councillor against disciplinary action taken against them under an adopted Code of Meeting Practice could be successful in finding such action to be invalid. However, a possible defence to such action, referring to the decision of the Supreme Court, could be:
The inclusion of powers for keeping order at meetings and censuring councillors for breaching council’s code of meeting practice, as referred to at s.490B of the Act; and
The power to censure a councillor being consistent with the sole disciplinary power conferred to Councils by s.440G of the Act.
Action required by Councils
It is understood OLG will be shortly issuing a Circular to Councils to cover this important decision. In the meantime,
Councils are urged to bring this decision of the Supreme Court to the urgent attention of members on their Conduct Review panels; and
Disciplinary recommendations should be limited to those specified in the Act, i.e. censure remaining the only sanction provided to Councils.
Cornish v Secretary, Department of Planning, Industry and Environment [2019] NSWSC 1134
Read the decision here
Graham Evans is the Managing Partner of O'Connell Workplace Relations, a Sydney-based provider of independent investigations into workplace issues. He has over 20 years' experience in working with NSW State and Local Government to deal with complex issues within their workplaces.
EMAIL: graham@oconnellgroup.com.au
