Campbell v Murray River Council

The Facts

1. The following facts are not in contention.
2. At an ordinary meeting of the Murray River Council meeting of 30 June 2020, Councillor Campbell made remarks about the funding of a project, including what she perceived as the duty of a fellow councillor to disclose interests connected with that project.
3. On 17 November 2020, the Council commissioned Centium to investigate complaints that Councillor Campbell's remarks at the 30 June 2020 meeting breached the Council's Code of Conduct.
4. Centium provided a report to the Council, dated 8 March 2021, finding that one of the complaints made had been sustained, namely that the remarks of Councillor Campbell were "likely to bring Council or Council officials into disrepute". Centium recommended that Councillor Campbell be censured under section 440G of the LG Act.
5. In its report, Centium recalled that "following receipt of the complaints, and on the advice of the Office of Local Government, the section of the webcast Council meeting of 30 June 2020 encompassing Councillor Campbell's comments subject of the complaints, was removed from Council's public accessible website."
6. On 22 June 2021, the Council adopted a resolution recording a vote that "the Council formally censure Cr Campbell for misconduct in making deleterious comments in relation to the Mayor and others at the 30 June 2020 Council meeting."
7. It is this censure decision of the Murray River Council that Councillor Campbell seeks to review in proceedings before the Tribunal.

Relevant Provisions of the Local Government Act 1993

1. The censure of Councillor Campbell was made pursuant to section 440G of the LG Act, which provides: Section 440G Formal censure of councillor for misconduct (1) A council may by resolution at a meeting formally censure a councillor for misconduct. (2) (Repealed) (3) A council may pass a formal censure resolution only if it is satisfied that the councillor has engaged in misconduct on one or more occasions. (4) The council must specify in the formal censure resolution the grounds on which it is satisfied that the councillor should be censured. (5) A motion for a formal censure resolution may, without limitation, be moved on the report of a committee of the council and any such report must be recorded in the minutes of the meeting of the council.
2. Under section 440H of the LG Act, the Departmental Chief Executive may conduct an investigation for the purpose of determining whether a councillor has engaged in misconduct. Such an investigation may be carried out on the Departmental Chief Executive's own initiative or if the general manager of a council or a council itself refers an allegation of misconduct to the Departmental Chief Executive. Section 440H(6) provides that "the preparation of a departmental report is a prerequisite to a decision by the Departmental Chief Executive to take disciplinary action against a councillor".
3. Section 440I of the LG Act sets out the types of disciplinary actions that can be taken by the Departmental Chief Executive and the requirements of form and notice for any decision to take such disciplinary actions.
4. Section 440J of the LG Act provides that the Departmental Chief Executive may decide to take no action. Alternatively, instead of taking disciplinary action against a councillor, the Departmental Chief Executive may (1) refer the matter to the council concerned with recommendations as to how the council might resolve the matter, or (2) refer the matter to the Civil and Administrative Tribunal for consideration.
5. Section 440L of the LG Act, under which Councillor Campbell has brought her application to the Tribunal, provides, in relevant part: Section 440L Appeals against disciplinary action (1) A councillor against whom disciplinary action (other than disciplinary action comprised only of counselling or reprimanding) is taken by the Departmental Chief Executive may appeal to the Civil and Administrative Tribunal against the decision of the Departmental Chief Executive to take disciplinary action. Note. An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013. (2) An appeal must be made within 28 days after the day on which the councillor is notified of the Departmental Chief Executive's decision to take disciplinary action against the councillor. (3) The Tribunal may stay any decision made by the Departmental Chief Executive until such time as the Tribunal determines the appeal. (3A) If the Tribunal stays a decision for suspension of a councillor for misconduct that has resulted or will result in disqualification from civic office under section 275(1A), the disqualification ceases to have effect or does not take effect (as the case requires) until such time as the appeal is finally determined or withdrawn. (4) On hearing the appeal, the Tribunal may - (a) confirm the decision, or (b) amend the decision, or (c) set aside the decision and substitute a new decision.
6. The Tribunal notes that the initial Application purported to be made under section 470L of the LG Act. The Council pointed out in its submissions that there is no such section, and suggested that the Applicant had intended to refer to section 440L instead. Councillor Campbell clarified in her Reply Submissions that her Application was being brought pursuant to section 440L of the LG Act and the Tribunal has proceeded on this basis.
7. The issue for the Tribunal to determine is whether it has jurisdiction to decide Councillor Campbell's application under section 440L of the LG Act.

Issue for Consideration: Does the Tribunal have jurisdiction?

1. The Civil and Administrative Tribunal Act 2013 (NSW) confers jurisdiction on this Tribunal as follows: 28 Jurisdiction of Tribunal generally (1) The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation. (2) In particular, the jurisdiction of the Tribunal consists of the following kinds of jurisdiction - (a) the general jurisdiction of the Tribunal, (b) the administrative review jurisdiction of the Tribunal, (c) the appeal jurisdiction of the Tribunal (comprising its external and internal appeal jurisdiction), (d) the enforcement jurisdiction of the Tribunal.
2. As specified in the note to section 440L(1) of the LG Act, an appeal under section 440(L) is an "external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013".
3. With respect to external appeals, section 31 of the Civil and Administrative Tribunal Act 2013 (NSW) provides: 31 External appeal jurisdiction of Tribunal (1) The Tribunal has external appeal jurisdiction over a decision (or class of decisions) made by an external decision-maker if legislation provides that an appeal may be made to the Tribunal against any such decision (or class of decisions). (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its external appeal jurisdiction - (a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings, (b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings. (3) An appealable external decision is a decision of an external decision-maker over which the Tribunal has external appeal jurisdiction. (4) An external appeal is an appeal to the Tribunal against an appealable external decision. (5) A provision of enabling legislation that provides for a decision of an external decision-maker to be appealed to the Tribunal extends to the following - (a) a decision made by a person to whom the function of making the decision has been delegated, (b) if the provision specifies the decision-maker by reference to the holding of a particular office or appointment - a decision by any person for the time being acting in, or performing any of the duties of, the office or appointment, (c) a decision made by any other person authorised to exercise the function of making the decision. (6) Nothing in this section permits external appeal jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act.
4. In order for this Tribunal to have jurisdiction, it must be satisfied that the decision from which the appeal is sought is an "appealable external decision". This means the decision must have been made by the external decision-maker identified in the enabling legislation, the LG Act.
5. In the case of section 440L of the LG Act, the external-decision maker is the "Departmental Chief Executive". The Dictionary in the LG Act defines the "Departmental Chief Executive" as the "Chief Executive of the Office of Local Government."
6. As noted by Cole DCJ in Deputy Secretary, Local Government, Planning and Policy v Garrard [2021] NSWCATOD 75, subsequent to the coming into operation of the LG Act, the title of the position of "Chief Executive of the Office of Local Government" has changed to the Secretary of the Department of Planning, Industry and Environment (see clause 13(3)(b) of the Administrative Arrangements (Administrative Changes-Public Service Agencies) Order 2019 and Schedule 1(1) of the Administrative Arrangements (Administrative Changes-Public Service Agencies) Amendment Order 2019). The Secretary of the Department of Planning, Industry and Environment has delegated his functions and powers under the Act to the Deputy Secretary, Local Government, Planning and Policy. (See also Cornish v Secretary, Department of Planning, Industry and Environment [2019] NSWSC 1134 at [4]).
7. In the present proceedings, the decision that is the subject of Councillor Campbell's complaint is the 22 June 2021 decision of the Murray River Council, not the "Departmental Chief Executive" within the meaning above. The Murray River Council not an external decision-maker capable of making an "appealable external decision" under section 31(5) of the Civil and Administrative Tribunal Act 2013 (NSW).
8. There is nothing in the materials before the Tribunal that suggests the decision was in fact one of the Departmental Chief Executive. There is no referral from Council to the Departmental Chief Executive in the materials before me. There is no departmental report, as required by section 440H of the LG Act before any decision on disciplinary action can be made by the Departmental Chief Executive. And there is no evidence of a decision by the Departmental Chief Executive to take disciplinary action against Councillor Campbell under section 440I of the LG Act. Councillor Campbell herself has stated that she has "not been in receipt of any notice that a complaint had been referred to the Office of Local Government nor have I been in receipt of any correspondence from the Office of Local Government."
9. The closest indication that the Office of Local Government was involved in the decision is the statement in the Centium report that, "following receipt of the complaints, and on the advice of the Office of Local Government, the section of the webcast Council meeting of 30 June 2020 encompassing Councillor Campbell's comments subject of the complaints, was removed from Council's public accessible website." Similarly, a letter of 31 August 2021 from the Council CEO to the Applicant's advocate states that the webcast was removed after the Office of Local Government "ordered" the Council to do so. In the view of the Tribunal, this is insufficient to establish that an appealable external decision has been made by the Departmental Chief Executive.
10. Even if there had been advice (or a direction) from the Office of Local Government to remove portions of the webcast of the Council meeting of 30 June 2020 pending the investigation, it is evident from the Centium report (and the Respondent's submissions citing to it), that this predated the 22 June 2021 decision that is the subject of these proceedings. Indeed, even if the advice from the Office of Local Government constituted "recommendations as to how the council might resolve the matter" within the meaning of section 440J(2)(a) of the LG Act, such action is described in the LG Act as an "alternative" to disciplinary action. It would not constitute "disciplinary action" by the Department Chief Executive within the meaning of section 440L of the LG Act, and thus would not be an appealable external decision over which this Tribunal has jurisdiction.
11. The Tribunal concludes that the decision complained of was not a decision of the Departmental Chief Executive. The Tribunal therefore lacks jurisdiction to decide Councillor Campbell's complaint under section 440L of the LG Act.
12. Having decided that the relevant decision was not made by the Departmental Chief Executive, the Tribunal need not consider the Council's argument that "in any event, the disciplinary action involved here was counselling which is precluded as an appeal ground even if the decision was made by the Departmental Chief Executive." It is thus unnecessary to address the difference between the Departmental Chief Executive's power to "counsel or reprimand" and a council's act of "censure" - one of the "unclear" aspects of the statutory scheme identified by Basten J in Cornish v Secretary, Department of Planning, Industry and Environment [2019] NSWSC 1134 at 37.
13. No other statutory provisions are cited for jurisdiction of this Tribunal to review the Council's decision of 22 June 2021 or for the Tribunal to decide any of the arguments put forward by Councillor Campbell with respect to the applicability of the Code of Conduct, any time limits for the complaints, whether the Council members understood the wording of the resolution, or whether her remarks warranted censure.
14. The Tribunal is not aware of any provision which would enable it directly to review a disciplinary decision by a Council against one of its own councillors. In the one judgment cited by the Parties, Basten J cited an earlier decision of this Tribunal accepting "that there would be no direct appeal to NCAT against a council's censure resolution under s 440G [of the LG Act]" (Cornish Secretary, Department of Planning Industry and Environment [2019] NSWSC 1134 (at [87], citing Phillips v Director General, Department of Premier and Cabinet [2014] NSWCATOD 48 at [18]).

Orders

1. The Tribunal makes the following orders: 1. The Tribunal dispenses with a hearing in this matter in accordance with section 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. The Respondent's application for summary dismissal of the Applicant's application is granted, on the ground that there is no jurisdiction. 3. The Applicant's application to the Tribunal under section 440L of the Local Government Act 1993 (NSW) is accordingly dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 October 2021