Chief Executive of the Office of Local Government v Bagnall

NCAT Occupational|2017-07-05

Solicitors: C. Rowe, Office of Local Government (Applicant) File Number(s): 2016/378827

Background to these Reasons

These Reasons for Decision explain my determination of a preliminary issue raised by the Respondent in these proceedings, Mr Gary Bagnall. In accordance with orders made at a directions hearing on 7 April 2017, I determined the preliminary issue on the papers, without a separate hearing.
The preliminary issue, which was raised at that directions hearing, is whether the Tribunal has jurisdiction to consider the application made by the Chief Executive of the Office of Local Government (which for clarity I will refer to as "the substantive application"). Also for clarity, I will refer to the proceedings relating to the substantive application as "the substantive proceedings".
The substantive application is made by the Chief Executive (or, to be precise, in this case the Acting Chief Executive) of the Office of Local Government, under section 440J of the Local Government Act 1993 ("the Act"). That section relates to disciplinary action against a councillor accused of misconduct. Sub-section (1) of the section allows the Chief Executive to decide to take no further action against the relevant councillor, but two alternative courses of action are made available under sub-section (2). The Chief Executive may either refer the matter back to the relevant local council with recommendations or, under s440J (2) (b), may refer the matter to this Tribunal "for consideration". The Acting Chief Executive did the latter.

The preliminary issue

The preliminary issue can be simply stated. Mr Bagnall contends that the Tribunal lacks jurisdiction to hear the substantive application. He relies on the provisions of the Procedures for the Administration of the Model Code of Conduct ("the Code of Conduct") adopted by the Council of Tweed Shire ("the Council") on 21 March 2013 and specifically paragraphs 5.26 and 5.28 of the Procedures.
Paragraph 5.26 is in the following terms:
"The general manager, Mayor or a conduct reviewer or conduct review committee may, at any time, refer a code of conduct complaint to an external agency or body such as, but not limited to, the Division, the Independent Commission Against Corruption, the NSW Ombudsman or the Police for its consideration, where they consider such a referral is warranted."
Paragraph 5.28 is in the following terms:
"Referral of the matter to an external agency or body shall finalise consideration of the matter under the code of conduct unless the Council is subsequently advised otherwise by the referral agency or body."
Mr Bagnall raised the preliminary issue at a directions hearing. He has outlined his contentions regarding the issue in writing on two occasions, firstly in a letter to the Tribunal dated 17 March 2017 which was received on 20 March 2017. That letter stated the contention in the following terms:
"Clauses 5.26 and 5.27 of the Administration of the Code of Conduct conclude that a matter is finalised when it is referred to the Police and that no further action can be taken, unless the Police advise the Council otherwise. In this present matter, the Reviewer did refer the matter to the Police and there was no advice from the Police to the Council otherwise."
A further letter from Mr Bagnall was received on 15 May 2017. It expressed the contention in the following terms:
"This matter was referred to the police by the Code of Conduct reviewer appointed by Tweed Council. Point 5.28 of the Administration of the Code states clearly that the matter is thus finalised."

Background: uncontested facts

The following facts appear to be uncontested and are provided as background to the preliminary issue. As it does not appear necessary to do so, I have not recited all the uncontested facts relevant to the substantive proceedings. 1. At all relevant times prior to October 2016 Mr Bagnall was a councillor of the Council. 2. On 17 September 2015 there was an incident involving Mr Bagnall and another councillor, who is a female, in the Council chamber shortly after the conclusion of a Council meeting. 3. The alleged words apparently addressed Mr Bagnall to the other councillor and Mr Bagnall's exact actions at the time are in dispute. 4. On 23 November 2015 the other councillor applied for and was granted an Apprehended Violence Order against Mr Bagnall in relation to the incident. That order was stated to expire on 24 November 2016. 5. On 25 January 2016 Police proceedings relating to the incident on 17 September 2015 came before Murwillumbah Local Court. They consisted of charge of assault, a charge of intimidation with intent to cause fear and a forensic application. Mr Bagnall entered a plea of guilty to the intimidation charge. The Court found the offence proved but dismissed it under s 10 (1)(a) of the Crimes (Sentencing Procedure) Act 1999. The charge of assault was withdrawn. The forensic application was not pursued. 6. On 18 September 2015 the other councillor involved in the incident on the previous day lodged a code of conduct complaint against Mr Bagnall in relation to the incident. The Council's complaints coordinator engaged a conduct reviewer to undertake an assessment of the matter. Following completion of the Police proceedings, the code of conduct complaint was referred to the conduct reviewer. She determined that there were sufficient grounds to investigate the complaint. 7. On 21 April 2016 the conduct reviewer's final investigation report was submitted to Council. It recommended that Mr Bagnall be formally censured and that the matter be referred to the Office of Local Government for consideration. However, the Council as constituted on that day was unable to consider the report or to proceed with the recommendations, because it lacked a quorum. 8. On the following day, 22 April 2016, the Council complaints coordinator referred the matter to the Office of Local Government. 9. Apparently on 5 May 2016, the Acting Chief Executive of the Office of Local Government approved the preparation of a departmental report into the conduct of Mr Bagnall. 10. A departmental report dated November 2016 ("the Departmental Report") was prepared. It was signed by the Acting Chief Executive and on 21 November 2016 was given to the Tribunal. That effectively commenced the substantive application.

The Code of Conduct and the Procedure

Section 440 of the Act provides that the regulations may prescribe a model code of conduct applicable to councillors, members of staff of councils and delegates of councils. The section requires a council to adopt a code of conduct incorporating the provisions of the model code, but the adopted code may include provisions which supplement the model, although an adopted code has no effect the extent of any inconsistency with the model code: s 440 (3) and (4).
Section 440 AA permits the regulations to prescribe a "model procedure" for administering any model code referred to in section 440 and confirms that a model procedure is to set out procedures for dealing with alleged contraventions of the model code of conduct.
In March 2013 the Council adopted : 1. the model code of conduct; and 2. the document referred to in the relevant Regulation as the "Procedure: Administration of the Model Code of Conduct March 2013". For convenience I will refer to that instrument as adopted by the Council as "the Procedure".

Mr Bagnall's case on the preliminary issue

On the basis of the materials available to me I cannot see that Mr Bagnall has expanded on the grounds set out in his correspondence as cited at paragraphs 8 and 9 above. So the contentions set out in those paragraphs constitute his case on the preliminary issue.

The Chief Executive's case on the preliminary issue

The Chief Executive, through Counsel, has provided detailed written submissions in relation to the preliminary issue which, in summary contend that: 1. Mr Bagnall's construction of the relevant paragraphs of the Procedure is wrong; and 2. in any case the operation of paragraph 5.28 (and by implication paragraph 5.26) of the Procedure, even on the construction contended by Mr Bagnall, do not undermine the validity of the Chief Executive's decision to arrange a departmental report under section 440 H (5A) of the Act, or the Chief Executive's action to institute the substantive proceedings by presenting that report to the Tribunal.

The Tribunal's approach

Under 36 (1) of the Civil and Administrative Tribunal Act 2013 the Tribunal is required , when exercising any power under that Act or the procedural rules, or interpreting any provision of the Act or the procedural rules, to give effect to the "guiding principle". The guiding principle is to facilitate the just, quick and cheap resolution of the real issues in proceedings.
Mindful of my obligations under that subsection and because it is convenient and sensible to do so, I will proceed as follows: 1. I will first consider the second contention made for the Chief Executive. That is whether paragraph 5.28 of the Procedure can operate so as to invalidate the decision of the Chief Executive to arrange a departmental report or to present that report to the Tribunal. 2. If I conclude that it does (but not otherwise), I will need to consider the other principal contention by the Chief Executive: that Mr Bagnall's construction of paragraphs 5.26 and 5.28 is wrong; or, put more fully, whether on a proper construction those paragraphs have the effect contended for by Mr Bagnall; namely that the Council or the complaint reviewer was not empowered to resume investigation of the matters concerning Mr Bagnall following advice from the NSW Police that the criminal case against him was completed, that the complaint should therefore be regarded as at an end and the Tribunal has no jurisdiction to consider the Departmental Report or the matter generally.

Can paragraph 5.28 of the Procedure operate so as to invalidate the Chief Executive's decision to arrange a departmental report or to present that report to the Tribunal?

I have concluded that paragraph 5.28 of the Procedure does not invalidate the Chief Executive's decision to arrange a departmental report or to commence the substantive proceedings in the Tribunal by referring that report under s 440J (2)(b).
I have reached that conclusion on the following grounds. 1. Firstly, the opinion to be formed by the Chief Executive under s 440 H (5A) to arrange for a departmental report is, in the case of a matter referred to the Chief Executive by the council, predicated only upon the Chief Executive forming a view about findings. They are findings of an investigation conducted by or on behalf of the council. In my view, even if there were a procedural defect in the investigation of the matters relating to Mr Bagnall based on Paragraph 5.28 (that is, because the matter had been referred to an external agency or body within the meaning of Paragraph 5.26 and yet consideration had not been "finalised"), that of itself would not undermine the validity of the Chief Executive's conclusion, based on the findings of that investigation, that a departmental report should be prepared. 2. Secondly, on any sensible reading of the Code of Conduct and Procedure as a whole and the relevant sections of the Act as a whole, paragraph 5.28 of the Procedure could not have the effect as contended by Mr Bagnall. That is, that any referral of the matter under complaint (for example to the Police) at what might be regarded as the "preliminary investigation level" (no matter what its consequence) prohibits and invalidates for all time any further consideration or referral of the matter. That would include, as here, consideration and referral at the "departmental level", including consideration by the Chief Executive as to whether the preparation of a departmental report was justified. If such an expanded operation of the paragraph were intended, one would think that that would be made clear somewhere: certainly in the Procedure itself or in the Act. It is not. 3. Thirdly, paragraph (c) of s 440H (5A) allows the Chief Executive to arrange for the preparation of a departmental report without forming any opinion about the findings if he or she "otherwise considers it appropriate to do so". For the purposes of deciding the preliminary issue, that is not as strong a ground as the previous ones, because there is nothing presently before me to indicate that the Acting Chief Executive did form an opinion that it was "otherwise appropriate" for a departmental report to be prepared. The opening paragraph of the Departmental Report, under the heading "Authorisation", repeats paragraph (a) of subsection 440H (5A) but it does not mention paragraph (c). That might be an indication that it was paragraph (a) which was the intended foundation for the preparation of the Departmental Report. However neither the Departmental Report itself nor anything else which I have seen indicates conclusively that this is the case. Paragraph 2 of the Departmental Report merely confirms that on 5 May 2016 the Acting Chief Executive approved the preparation of the Departmental Report. It remains possible that the Acting Chief Executive did this in reliance on s 440H (5A) (c): that is he or she otherwise considered it appropriate for a report to be prepared. Even if I am mistaken as to the factual basis for this ground, the matters set out by me in paragraph (1) and (2) above validate and justify the preparation of the Departmental Report.
I record that a substantial part of the written submissions on the preliminary issue by Counsel for the Chief Executive was devoted to a detailed analysis of the words of paragraph 5.28. Counsel concluded that on its proper construction paragraph 5.28 did not have the effect contended for by Mr Bagnall and that the Council or the complaint reviewer was empowered to resume investigation of the matters concerning Mr Bagnall following advice from the NSW Police that the criminal case against him was completed. Because of my conclusions in paragraphs 18 and 19 above it is not necessary for me to consider that analysis further.
It follows from these conclusions that in Paragraph 5.28 of the Procedure, the phrase: "shall finalise consideration of the matter under the code of conduct" cannot be construed so broadly that a referral to any of the external bodies contemplated by paragraph 5.26 will terminate or impede the ability of the Chief Executive: 1. to conduct an investigation for the purposes of determining whether a counsellor has engaged in misconduct, under s 440H (1); 2. to arrange for a departmental report to be prepared in relation to such an investigation, under s 440H (2); or 3. most significantly, to arrange for a departmental report to be prepared about whether a councillor has engaged in misconduct without any investigation being carried out, under s 440H (5A), in the circumstances set out in paragraphs (a), (b) and (c) of that sub-section.
Accordingly, s440H (5A) properly applies and constitutes a valid foundation for the substantive application in this case: that is for referral of the matter to this Tribunal under s 440 J (3) of the Act. Accordingly, the Tribunal does not lack jurisdiction to consider the substantive application.

Double-jeopardy (autrefois convict)

For completeness I should note that as understood by Counsel for the Chief Executive and apparently the Acting Chief Executive himself, Mr Bagnall's contentions are based on the old and somewhat controversial principle prohibiting double jeopardy or "autrefois convict", which began as a special plea in bar to a criminal prosecution, by which the accused alleged that he has already been tried and convicted for the same offence before a court of competent jurisdiction. (PG Osborne: "A Concise Law Dictionary" (1964) p.39).
I did not understand Mr Bagnall's contentions to be based specifically on the "double jeopardy" principle, but for completeness I find that the principle has no relevance to the current proceedings.
That is so principally because the purpose and nature of criminal proceedings and sanctions relating to them and those relating to licensing and occupational disciplinary matters are quite distinct. Counsel for the Chief Executive contended that the criminal proceedings and sanctions are directed at penalising conduct proscribed by law, whereas occupational disciplinary proceedings and sanctions are fundamentally protective, both of the standards of the professional or occupation in question and of the community (paragraph 50 of the submission). That is correct. Such a distinction has been confirmed in leading cases including NSW Bar Association v Meakes [2006] NSWSCA 340 at [114].
Counsel for the Chief Executive also drew my attention to a Tasmanian Supreme Court case directly pertinent to "double jeopardy": Evans v Campbell [1999] TASSC 115, where it was held that the removal of a licence from a commercial fisherman, in circumstances where he had had numerous prior criminal convictions for breaches of fisheries licensing legislation in Tasmania and Victoria, was not prevented by operation of the double jeopardy principle.

conclusion and order

It follows that the Tribunal has jurisdiction to hear the substantive matter and I order accordingly.

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 July 2017

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