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Deputy Mayor’s private remarks about gays held to have amplified impact due to position on Council

A recent NCAT appeal decision has confirmed the circumstantial relevance of a person’s status as a councillor when considering the impact of their conduct, even if their conduct is undertaken in a private capacity. In this decision, the Appeal Panel held that statements made by Ms Julie Passas, a Councillor of the Inner West Council, to her neighbour which vilified homosexuals on the day of the “Yes Vote” had an amplified negative effect.

Background On 15 November 2017, in celebration of the National Same Sex Marriage Yes Vote, Mr Daniel Comensoli draped a rainbow flag from his Ashfield apartment balcony. Later that evening, he was in the driveway of the apartment complex when he heard his neighbour, Ms Passas, yelling at him from her balcony, demanding that he remove the flag because it was “offensive to my culture and religion”.

Mr Comensoli refused, to which Ms Passas loudly stated words to the effect that he should not be afforded the right to marry “until you could breastfeed and have children”. The exchange was loud enough that it could be heard by other residents in the complex and surrounding areas.

A Code of Conduct Investigation was undertaken by a Conduct Reviewer engaged by the Council’s Internal Ombudsman and determined that the Deputy Mayor was “acting in a private capacity, and not as a Councillor, thus the alleged conduct does not fall under the provisions of the Council’s Code of Conduct.”

The Tribunal’s decision The Appeal Panel upheld the ruling that Ms Passas’ conduct amounted to unlawful vilification on the grounds of sexuality. Specifically, the Panel agreed with the Members’ acceptance at first instance that while Ms Passas’ conduct was done in her private capacity, rather than as a member of the local council, her position on the local council at that time and in previous years amplified the effect or impact that her conduct had on the audience. While no authority was presented in support of this proposition, the Appeal Panel considered it made logical sense to conclude that these circumstances would in turn be relevant on the question of penalty and harm caused to Mr Comensoli.

The Tribunal order Ms Passas to publish an apology for her conduct in a local newspaper and pay Mr Comensoli damages of $2500.

Comments on this matter The approach NCAT’s Appeal Panel on the above matter demonstrates that decision makers are able to rely on the circumstances of an individual’s position and status as a councillor as a relevant consideration when considering the impact of their conduct otherwise manifested in a private capacity.

Furthermore, the case stands as a reminder that while a Code of Conduct Investigation may not find that a Councillor has committed misconduct as the conduct occurred in a private capacity, the complainant may still have the ability to pursue their claims through another jurisdiction, such as NCAT.

Passas v Comensoli [2019] NSWCATAP 298

Read the full decision here

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