Councillor Andrew Thaler v Secretary, Department of Planning, Housing and Infrastructure [2026] NSWCATOD 21;

(c) by order, direct the councillor to cease engaging in the misconduct;

(d) by order, direct the councillor to apologise for the misconduct in the manner specified in the order;

(e) by order, direct the councillor to undertake training;

(f) by order, direct the councillor to participate in mediation;

(g) by order, suspend the councillor from civic office for a period not exceeding three months;

(h) by order, suspend the councillor's right to be paid any fee or other remuneration, to which the councillor would otherwise be entitled as the holder of the civic office, in respect of a period not exceeding three months (without suspending the councillor from civic office for that period)."

1. The Secretary relied on the nature and seriousness of the conduct which Cr Thaler has not disputed in these proceedings. The Tribunal has earlier set out the details of Cr Thaler's misconduct. The Secretary submitted that breaches 3 to 5 were likely to bring the Council and Cr Davis into disrepute, contrary to clause 3.1(a) of the Code of Conduct, constituted harassment contrary to clause 3.1(g) and clause 3.8 of the Code, and bullying behaviour contrary to clause 3.6 of the Code. Each of those contentions is well founded.
2. The Secretary relied on Cr Thaler's remarks which gave rise to breaches 3 to 5 having been made "in the express context of council business". His reference to potential "bullshit Points of Order" by Cr Davis was submitted to be "an apparent attempt to ridicule and criticise the manner in which she discharges her functions as a Councillor. Public ridicule of this kind on a social media platform creates a hostile environment", is "likely to bring the council or other council officers into disrepute" and is apt to discourage participation in debate. The comments made by Councillor Thaler insinuate Councillor Davis failed to exercise diligence in the performance of her role as a Councillor and that she and the Council are incompetent". Each of those contentions is well founded, particularly as Cr Thaler has given no evidence in these proceedings disputing either his apparent intention in making his offensive remarks, or the innuendo inherent in them.
3. The Secretary submitted that the label "demented" was "inherently pejorative and suggestive of mental incapacity" and that, when joined with the reference to a "goose", "undermined Councillor's Davis' dignity and capacity to be taken seriously by colleagues and the community". The conduct was submitted to constitute harassment as it "offends, humiliates (and) intimidates". The Secretary submitted that Cr Thaler's comments that "We need to get rid of the demented goose" reasonably suggest animus towards Cr Davis and has the propensity to incite further harassment or humiliation directed towards her. Each of those contentions is supported by the evidence, and, particularly in the absence of any evidence from Cr Thaler contradicting it, established to the Tribunal's comfortable satisfaction.
4. The Tribunal finds that Cr Thaler's conduct constituted "bullying behaviour", and was belittling and humiliating, contrary to clause 3.10 of the Code.
5. The Secretary submitted that a number of other adverse inferences with respect to Cr Thaler's intentions could be drawn from the content of his comments. The Tribunal is comfortably satisfied that breaches 3, 4 and 5 contravene clauses 3.1(a), 3.1(g), 3.6 and 3.8 of the Code, as asserted in the departmental report, at [73].
6. With respect to breaches 6 to 7, which involved conduct directed to Mr Catton, the Secretary submitted, and the Tribunal accepts, that Cr Thaler's conduct with respect to Mr Catton were the most objectively serious forms of harassment in the proceedings, and contravened clauses 3.1(a), 3.1(e), 3.1(g), 3.6 and 3.8 of the Code, as asserted in the departmental report, at [83].
7. As is not in dispute, Mr Catton is a person who the NDIS has apparently been accepted by the relevant authority as being entitled to NDIS benefits. Cr Thaler's statements to and about Mr Catton were grossly and inexcusably offensive. His cruel attempts to publicly humiliate Mr Catton reflect poorly on Cr Thaler. It was submitted by the Secretary that members of the Council should "treat community members respectfully". The Tribunal accepts that Cr Thaler's conduct not only damaged his own reputation, but reflected on the Council as a whole, and potentially undermined the disability inclusion plan adopted by the Council. As submitted by the Secretary, by identifying himself in one video as "Councillor Andrew Thaler on the Snowy Monaro Council", Cr Thaler "tied his statements to the authority of his office". The Tribunal accepts that doing so aggravated the reputational damage, as members of the public are "entitled to assume that his words carry the imprimatur of the council office".
8. The Secretary submitted that, by recording Mr Catton's fire damaged home on 12 March 2025 Cr Thaler behaved in an intimidatory manner contrary to clause 3.1(e) and 3.6 of the Code. The Tribunal accepts that, at that time, Mr Catton was "particularly vulnerable", and being assisted by ambulance and police officers. Cr Thaler's recording of Mr Catton's fire damaged home, which he described as a "funny story", subjected Mr Catton to a hostile environment in breach of clause 3.7 of the Code. The Tribunal finds that, as submitted by the Secretary, that Cr Thaler mocked Mr Catton's use of the NDIS, his weight, and his disability status, as evidenced by Cr Thaler's references to Mr Catton as the "fat bastard in the wheelchair" and "fat Jesus". Cr Thaler clearly alleged that Mr Catton was exploiting the NDIS because, in his view, Mr Catton is not genuinely disabled. There is no evidence before the Tribunal which provides a rational basis for Cr Thaler's beliefs. The Tribunal agrees with the submission of the Secretary that the "targeted and repeated humiliation constitutes verbal abuse", in breach of clause 3.1(e), harassment in breach of clause 3.1(g) and 3.7, and bullying in breach of clause 3.8 of the Code of Conduct. The Tribunal accepts that Cr Thaler's conduct posed a risk to Mr Catton's emotional and psychological health and safety in breach of clause 3.9(a).
9. The Secretary submitted with respect to the conduct which gave rise to breach 8, that Cr Thaler's conduct towards Cr Summers was a further example of personal attacks on another's appearance - the "really ugly one from labor" - and was intended to offend or humiliate Cr Summers and constitutes harassment in breach of clause 3.6 of the Code. For the reasons submitted by the Secretary in relation to Cr Thaler's comments to the "stenographer", there is little doubt that Cr Thaler recognised that his conduct was likely to cause harm or offence to Cr Summers. The Tribunal finds that breach 8 constituted a breach of clauses 3.1(c), 3.1(e), 3.1(g) and 3.6 of the Code as alleged in the departmental report at 86.
10. The Secretary submitted with respect to breach 9, which involved Cr Thaler referring to a member of the public, Mr Kapetanakos, as "an arsehole" and a "complete piece of shit" constituted improper and unethical, aggressive and belittling and constituted harassment. The Tribunal accepts that Cr Thaler's conduct constituted breach of clause 3.1(c), 3.1(e), 3.1(g) and 3.6 of the Code of Conduct as asserted in the departmental report, at [90].
11. In support of the Secretary's contention that the Secretary's decision should be confirmed, reliance was placed in the decision in Deputy Secretary of the Department of Local Government, Planning and Policy v Doueihi (No. 2) [2022] NSWCATOD 3 which was submitted, correctly, to have been cited with approval in Thaler (No 1) , at [92].
12. It is appropriate to record the general principles with respect to determining the appropriate disciplinary action against a councillor referred to in those cases. They provide (citations omitted):

"39 Secondly, there are important but indirect effects of a disciplinary order. These were recognised by Basten JA in NSW Bar Association v Meakes [2006] NSWCA 340 in relation to barristers. These considerations are relevant (by analogy) to orders made in respect of a local councillor and include:

(i) the order reminds other councillors of the public interest in the maintenance of high standards;

(ii) the order may give emphasis to the unacceptability of the conduct involved; and

(iii) by speaking to the public at large, the order seeks to maintain confidence in the standard of conduct of local councillors.

40 Thirdly, there is a "public interest in having the respondent's conduct denounced as unacceptable", and that orders made by the Tribunal would "make plain that conduct of the kind engaged in is unacceptable".

41 Fourthly, the availability of a range of statutory disciplinary options implies the necessity to consider whether those short of depriving the constituents of their representative can adequately punish the councillor's failure to comply with the statutory obligations and vindicate the public interest in maintaining the honesty of municipal administration.

42 Fifthly, whether the proposed orders will prevent the respondent from exercising any functions as a councillor, and the impact of this on constituents.

43 Sixthly, whether there have been any previous offences.

44 Seventhly, the acknowledge if any, or apology or remorse for, the conduct by a respondent, and the lack of any insight into the conduct on their part.

45 Eighthly, the longer the experience as councillor the greater should be the councillor's understanding and knowledge of their duties and obligations. That is not to say that misconduct of an inexperienced councillor should be excused. All councillors must act honestly and exercise a reasonable degree of care and diligence in carrying out his or her functions under the Act (s 439(l)?) and comply with the council's code of conduct (s 440(5))."

1. It was submitted by the Secretary, correctly, that the "common features" of Cr Thaler's offending conduct were the use of crude insults directed towards complainants' appearances, character or integrity, and the use of social media posts to publicly broadcast those insults and accusations. The Secretary submitted, accurately, that Cr Thaler has provided no material to support a finding of remorse, contrition or insight into his behaviour.
2. It was submitted by the Secretary that, notwithstanding Cr Thaler's brief period in office prior to March 2025, a reasonable person in his position ought to have been aware that his conduct fell short of the expected standard of an elected councillor. The Tribunal accepts that submission. A reasonable person in Cr Thaler's position ought to have been aware that his conduct fell well short of the expected standard of an ordinary member of the community. The Tribunal accepts the submission of the Secretary that there is no justification for any of Cr Thaler's offending conduct.
3. The Secretary submitted that a suspension of three months is not reserved for only the most serious cases of misconduct. As Deputy President Hennessy ADCJ observed in Thaler (No. 1) at [99]-[100], had the conduct the subject of the proceedings been referred to the Tribunal under s 440J(2)(b) of the LG Act, Cr Thaler could have faced disqualification from holding office for a period not exceeding five years under s 482A of the LG Act.

1. As Counsel for Cr Thaler's oral submissions confirm, the challenges to the suspension order in reliance upon judicial review grounds is also relevant to the determination of the merits of the case. Although the Tribunal has not accepted that any of those challenges has been made out, the Tribunal is mindful of the substance of each of those contentions. It is unnecessary to reiterate the detail of those submissions again in the present context.
2. Cr Thaler having elected not to give evidence, his Counsel were necessarily constrained in what could sensibly be put on his behalf. It was acknowledged by Counsel for Cr Thaler that "Consistent with the de novo nature of the appeal and the Brian Lawlor principle, the Tribunal must re-exercise the discretion to take appropriate disciplinary action if it finds misconduct proved". Apart from the absence of evidence, from Cr Thaler or otherwise, militating against finding misconduct proved, the Tribunal is comfortably satisfied that the evidence relied upon by the Secretary constitutes misconduct in the various forms advanced by the Secretary.
3. It was put that the chronology of events upon which Cr Thaler placed reliance in the context of his judicial review challenges "must bear heavily on the appropriate disciplinary action". That submission succinctly focuses attention on a major issue for determination in the context of the Tribunal's ultimate decision. The crux of Cr Thaler most potentially most compelling contention asserted that [91] "yet the first report was still being prepared when the conduct the subject of the third report occurred and it was within the power to include that conduct in the first report."
4. It was further submitted that the "similarity of the conduct and the previous first suspension mitigates the disciplinary action that should be taken. Councillor Thaler had not received the first report, let alone the first suspension and the statement of reasons at the time of the conduct in the third report". It was thus submitted to have been "chronologically impossible for Councillor Thaler to reflect on his conduct given it occurred before the first report and first suspension".
5. It was submitted that, but for the "arbitrary division of the March conduct into two separate reports" and the other reasons of invalidity asserted on his behalf, Cr Thaler "would only have been subject to a single three month suspension". It was thus accordingly submitted that it was proper for the Tribunal to take that into account and that any disciplinary action should be less than the most severe action available and the consequences that flow from that.
6. In support of his contentions, Cr Thaler attached (Annexure "A") a table recording the date, conduct, report and appeal to which Cr Thaler's offending conduct referred. As that table confirms, Cr Thaler's conduct which gave rise to the second suspension order occurred on 12, 16, 18, 25, 26 and 30 March 2025. The departmental report which gave rise to the first suspension order was requested on 10 March 2025, and issued in draft form on 17 March 2025, Cr Thaler on 3 April 2025 having been granted an 8 day extension to respond to it. On 3 April 2025, at which time Cr Thaler still had 8 days in which to respond to the first draft report, the Secretary requested a departmental report to be arranged in reliance upon Cr Thaler's conduct between 12 and 30 March 2025. Cr Thaler provided his response to the first report on 10 April 2025. On 30 April 2025, pursuant to a further extension to which the Secretary consented, Cr Thaler responded to the departmental report. On 5 May 2025 the Secretary found that Cr Thaler's conduct constituted misconduct and suspended him for a period of three months. The suspension commenced on 13 May 2025.
7. Cr Thaler relied on the fact that it was not until 4 June 2025 that a draft report issued in response to the Secretary's request two months earlier, notwithstanding that there had been no further referral with respect to alleged misconduct in April or May 2025, and that Cr Thaler responded to the report on 2 July 2025. On 10 July the final departmental report was provided to Cr Thaler who provided a response on 25 July, the Secretary determining to impose the second suspension order on 28 July 2025. It was submitted that the Secretary other than on the basis that there was no legal requirement to the Secretary doing so, Cr Thaler submitted that there was no explanation for the Secretary either in the circumstances, declining to impose the second suspension or, to have refrained from making a suspension order until, and in reliance upon, the totality of Cr Thaler's conduct during March 2025.
8. As recorded earlier, Cr Thaler placed significant reliance upon the conduct of the Secretary having deprived him of the opportunity to reflect on his offending conduct and mend his ways. The significance of so doing was submitted to be heightened by the "three strikes" submissions. Cr Thaler submitted that, having regard to the automatic period of disqualification under s 275A of the LG Act, and the reality that, if a second suspension order was imposed, Cr Thaler would have needed to have avoided further proven misconduct for a period of almost four years in order to avoid potentially, or, it was submitted, inevitably invoking the third strike, with the draconian consequences that entailed.

1. The Secretary disputed Cr Thaler's contention that his serial misconduct "mitigates the appropriate disciplinary action, either as a matter of logic and principle". Reliance was placed on the decision in Henadeck Pty Ltd v Independent Liquor and Gaming Authority [2020] NSWCATAP 200 at [88], in which the principles applicable to the "weight" of obiter dicta were explained.
2. The Secretary disputed Cr Thaler's contention that it was "chronologically impossible for Councillor Thaler to reflect" on his conduct the subject of the first suspension order before the implications of is misconduct materialised with the second suspension order. The Secretary relied on a number of matters in support of those contentions:

(1) Cr Thaler was an elected official, and as such bound by the Code of Conduct;

(2) Cr Thaler was subject to a performance improvement order;

(3) Cr Thaler had previously signed a written undertaking on to, inter alia, refrain from making statements that a reasonable person may consider offensive, abusive, harassing, threatening or disrespectful;

(4) on 17 March 2025 Cr Thaler received a draft copy of the departmental report concerning the first suspension which was prior to seven of the particular instances of misconduct the subject of this appeal;

(5) Cr Thaler appears to acknowledge the report in a video the next day on 18 March 2025 stating "The office of local government are trying to take disciplinary action against me at the moment" after which, on 18, 25, 26 and 30 March Cr Thaler engaged in misconduct.

1. The Secretary reiterated an earlier submission that Cr Thaler has demonstrated a lack of insight into his misconduct or any genuine remorse. It was submitted that it was an "inescapable inference" that Cr Thaler is not remorseful for his conduct and has no insight into his misconduct. That lack of remorse and insight was submitted to have been demonstrated on 8 May 2025 during an interview with Cr Thaler in which he reiterated a number of his previous offensive comments with respect to Cr Higgins.
2. The Tribunal need only, and does find, that there is no evidence of contrition or remorse from Cr Thaler. There is no evidence that Cr Thaler has insight into his conduct, or has gained insight into that conduct as a result of the proceedings (Secretary, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102).
3. It was submitted by the Secretary that the conduct the subject of the present proceedings is "entirely distinct" from the conduct which was the subject of Thaler (No. 1) and that some of the conduct being directed towards the same individuals or being similar to previous conduct cannot sound in mitigation but rather aggravates the misconduct and engages the protective function of the Tribunal's jurisdiction. The Secretary relied upon the decision in Office of Local Government v Neville [2018] NSWCATOD 31 at [36] where it was said that:

"As with professional disciplinary matters, the Tribunal's jurisdiction is at least in part protective, both of the public and of the maintenance of high standards in the ranks of the particular occupation, here local councillors."

1. The Tribunal referred in support of that observation to the decision of the Court of Appeal in Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWSC 297.
2. In the context of "totality" the Secretary referred to the Judgment of Howie J in Cahyadi v R [2007] NSWCCA 1 at 27 in which his Honour said:

"There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."

1. The Secretary submitted in reliance upon his Honour's observations that the conduct the subject of this appeal "comprises discrete independent acts over separate days" which cannot be categorised as "constituting a course of conduct or a similar episode of criminality". As will be seen, this submission, and the submissions on behalf of Cr Thaler with respect to reasonableness, proportionality and totality require careful consideration.
2. It was submitted by the Secretary, correctly on the authorities, that Cr Thaler's previous misconduct was a relevant consideration. Both parties suggest that is so, albeit for quite different reasons.
3. The Secretary submitted that Deputy President Hennessy ADCJ's decision in Thaler (No. 1), confirming a three month suspension for fewer arguably less serious misconduct by Cr Thaler supported the Tribunal imposing a three month suspension in these proceedings. As the Secretary had earlier submitted, inherent in that contention was the Tribunal's acceptance that the misconduct which led to Cr Thaler's second suspension order was separate and discrete from the misconduct which led to his first suspension order.
4. The Secretary submitted, and the Tribunal accepts that, whilst not bound by the decision in Thaler (No. 1), uniformity, rationality and consistency in decision making are desirable in administrative law proceedings. The Secretary referred to the statement by the High Court in Plaintiff M64/2015 v Minister (2015) 258 CLR 173; [2015] HCA 50, at [54] where it was said "Policy guidelines like the priorities policy promote values of consistency and rationality in decision making, and the principle that administrative decision makers should treat like cases alike. In particular, policies or guidelines may help to promote consistency in "high volume decision making", such as the determination of applications for subclass 202 visas. Thus, in Re Drake v Minister for Immigration and Ethnic Affairs (No. 2) [1979] AATA 179, Brennan J, as President of the Administrative Appeals Tribunal, said that "Not only is it lawful for the Minister to form a guiding policy, its promulgation is desirable" because the adoption of a guiding policy serves, among other things, to assure the integrity of administrative decision making by "diminishing the importance of individual predilection" and "the inconsistencies which might otherwise appear in a series of decisions". The subjectivity of the evaluation by a decision maker in a case such as the present highlights the importance of guidelines. The importance of avoiding individual predilection and inconsistency in making choices between a large number of generally qualified candidates by the application of the open textured criterion of "compelling reasons for giving special consideration" is readily apparent".
5. It was further submitted in reliance upon the Judgment of Street CJ in The Queen v Visconti (1982) NSWLR 104 where his Honour said at [107] that "The existence of the general pattern of sentencing by criminal courts for offences such as those under consideration" is such that "full weight is to be given to the collective wisdom of other sentencing judges in interpreting and carrying into effect the policy of the legislature". A similar approach was submitted to be applied in disciplinary proceedings (Health Care Complaints Commission v Karalasingham [2007] NSWCA 267).
6. In Office of Local Government v Neville [2018] NSWCATOD 31 at 63 it was held that a legitimate consideration "is whether the orders made reveal inconsistencies of approach on the part of the Tribunal, when viewed against other decisions revealing similar kinds of misconduct". It was accordingly submitted by the Secretary that the Tribunal has a previous decision of the Tribunal with "the same Councillor, similar misconduct, and no apparent remorse or distinguishing subjective features that justify a more lenient departure" from the disciplinary action taken in Thaler (No. 1).

1. To properly evaluate the submissions of both parties with respect to the timeframe with respect to the evolution of the second suspension order, it is appropriate to reiterate the dates and events which assume significance in the Tribunal's findings.
2. On 10 March 2025, the Secretary requested a report with respect to Cr Thaler's conduct on 5 and 6 March 2025. Cr Thaler had, on 10 February 2025, signed an undertaking to comply with a Performance Improvement Order (PIO) made by the Minister for Local Government on 6 February 2025. The conduct which led to the first and second suspension orders contravened the Code of Conduct. On 17 March 2025 Cr Thaler was provided with a draft of the report with respect to his conduct on 5 and 6 March 2025. Cr Thaler responded to the draft report on 10 April 2025. On 3 April 2025, the Secretary requested the report which, in its final form, was relied upon when the decision to impose the second suspension order was made on 28 July 2025. The evidence does not establish that Cr Thaler knew, or was entitled to know that, seven days prior to the time for him to respond to the 17 March 2025 draft report expiring, the Secretary had requested a report into his conduct between 18 and 30 March 2025.
3. Cr Thaler submitted that, although first requested on 10 March 2025, the Department was able to deal with all of Cr Thaler's conduct between 5 and 30 March 2025 in the final report of 16 April 2025 which informed the Secretary's decision to make the first suspension order on 5 May 2025. Cr Thaler submitted that the Secretary adduced no evidence explaining why the final first report did not address all of the March 2025 conduct and, in reliance upon it, have made a single suspension order. Had the Secretary done so, the maximum suspension which could have been ordered was three months. It has not been demonstrated that, on legal or practical grounds, provided that Cr Thaler had the opportunity to respond to it, the Secretary could not, by 16 April 2025, have obtained a further report which addressed Cr Thaler's misconduct between 5 and 30 March 2025. The approach taken by the Secretary had significant adverse consequences for Cr Thaler- he incurred a second, consecutive three month suspension, had no opportunity to mend his ways in the light of the first suspension, had only one remaining "strike" before s 275(1A) was enlivened, and almost, potentially, four years, in which he was at risk of that happening.
4. It was submitted on behalf of Cr Thaler that "During the course of April" there were "three processes on foot" all dealing with Cr Thaler's conduct in March 2025, one with some of the conduct in the first period, another with activity within the whole period, and another dealing with activity not in the first period. The short response to that contention is that Cr Thaler's own conduct gave rise to that state of affairs.
5. In May 2025, a report pursuant to the request of 3 April 2025 issued, which dealt with Cr Thaler's conduct between 5 and 30 March 2025. Whether that report issued prior to 5 May 2025, the date when it was decided to impose the first suspension order, is unclear. The first suspension decision was made on 13 May 2025. Cr Thaler was invited to respond to the May report on 4 June 2025. The evidence does not establish that Cr Thaler knew, or was entitled to know, that the report had been requested, or its contents, prior to that date. It has not been demonstrated that, on legal or practical grounds, the decision to impose the suspension order on 5 May 2025 could not have been in reliance on Cr Thaler's conduct which was the subject of the request of 3 April 2025. If it had been, as recorded above, Cr Thaler's tenure as a councillor would have been significantly less fraught.
6. The Secretary submitted, accurately, that as and from 17 March 2025, when Cr Thaler was provided with a draft departmental report in relation to his conduct on 5 and 6 March 2025, and invited him to make a submission, if he had not previously been, Cr Thaler was on notice of the likelihood of disciplinary action if he continued his conduct. In isolation, that contention has some appeal. Viewed in context, it does not. The conduct of Cr Thaler which gave rise to the second suspension order commenced on 18 March 2025, and occurred again on 25, 26 and 30 March. The Secretary submitted that it is not correct to contend that the timing of the Secretary's actions deprived Cr Thaler of the opportunity to reflect on his conduct and mend this ways, and that Cr Thaler's conduct in the two week period following the draft report being provided to him, and statements made by him left no room for doubt that he knew and understood the risks that his conduct may result in further disciplinary action and consciously took those risks.
7. Without excusing Cr Thaler's conduct in any way, there is a material distinction between being on notice of the contents of a draft report on 17 March 2025, and Cr Thaler being informed on 5 May 2025 that the Secretary had decided to suspend him for the maximum period available under the LG Act- three months. The evidence does not establish that, knowing that he was at risk of the first "strike", as Cr Thaler should have, meant that Cr Thaler knew, or should have known that he was at risk of the second "strike", particularly as the report of 16 April 2025 which resulted in the former was made two weeks after the occurrence of the last of the conduct which resulted in the second suspension order.
8. The Tribunal accepts the contention of the Secretary that any similarity between the misconduct which gave rise to the first suspension order and that which gave rise to the second suspension order should not ameliorate the seriousness of the latter conduct. Although there were some similarities, the evidence establishes that there were substantial differences in the nature and seriousness of the misconduct, and the persons who were subjected to it, which gave rise to the second suspension order and the conduct which gave rise to the first suspension order. The Secretary submitted that, if the Tribunal does not confirm the Secretary's decision, Cr Thaler could be seen to have benefited from conduct subsequent to his first suspension which was more egregious than the conduct which led to that suspension. That contention identifies what is ultimately the greatest obstacle to Cr Thaler succeeding with his appeal.
9. Largely for the reasons submitted by the Secretary, the Tribunal does not accept that the similarity or "overlap" between the conduct which gave rise to the first and second suspension orders mitigates the seriousness of Cr Thaler's offending conduct. To examine the conduct is to realise why the Tribunal makes that finding. Arising from the submissions of Counsel for both parties, in the light of Howie J's Judgment in Cahyadi, and the authorities referred to above, it is necessary to consider whether the conduct which gave rise to the first suspension order and the conduct which gave rise to the second suspension order should be seen as "two discrete acts" of misconduct, as the Secretary contends, or should be regarded as "part of a single episode" of misconduct, as Cr Thaler contends.
10. The timeframe within which the misconduct occurred - 5 March 2025 to 30 March 2025 is relevant in that evaluation. Also relevant is the similarity in the misconduct during that period. Counsel for the Secretary's submissions, referred to earlier, aptly describe the various ways in which the conduct in each instance breached the Code of Conduct and Cr Thaler's undertaking with respect to it. Although directed to different persons, and varying in seriousness, Cr Thaler's conduct on 5, 6, 18, 25, 26 and 30 March 2025 involved insulting, offensive, humiliating and hurtful personal comments about councillors and two members of his community which he published online. Having regard to the timeline with respects to the requesting and provision of Departmental reports, and the implications of them discussed above, and accepting that minds could reasonably differ, the Tribunal finds that, on balance, the misconduct which resulted in Cr Thaler's second suspension can be seen as part of a single episode of misconduct which commenced on 5 March 2025 and continued until 30 March 2025.
11. Consistent with the approach taken in Thaler (No. 1), and as submitted by Counsel for both parties, consideration of the appropriate protective orders is most helpfully informed by reference to the eight factors identified in Doueihi. The Tribunal accepts that they identify "important but indirect effects of a disciplinary order". In NSW Bar Association v Meakes [2006] NSWCA 340, it was accepted that disciplinary orders should remind other members of a profession of the public interest in the maintenance of high standards, emphasising the unacceptability of the conduct involved and, by speaking to the public at large, seeking to maintain confidence in the standard of conduct of local councillors. Those objectives apply to protective orders with respect to local government councillors. In this case, there is no prospect of the orders which the Tribunal makes not engaging with each of the three factors identified in Doueihi at [39]. The critical issue is whether the most severe order provided by the LG Act should be made, or whether orders involving lesser sanctions adequately address those factors. Having regard to the implications of confirming the Secretary's decision, the Tribunal must be comfortably satisfied that it should be confirmed, or, if it is not, that the Tribunal is similarly satisfied that the protective orders which it makes in lieu of the second suspension order are appropriate in all the circumstances. The Tribunal does not understand either party to dispute those propositions.
12. The public interest in having the respondent's conduct denounced as unacceptable understates the denouncement which is appropriate in this case. Cr Thaler's undisputed conduct was offensive, humiliating and disgraceful, particularly so in the case of Mr Catton, involved an abuse of his position as an elected representative for his constituents and was a gross betrayal of their trust in him. Conduct of the kind engaged in by Cr Thaler is indefensibly unacceptable. The Tribunal's refusal to stay the second suspension order, resulting in Cr Thaler being suspended for three months publicly denounced his misconduct. Unless Cr Thaler is able to mend his ways, it is virtually inevitable that, assuming he is re-elected within that time, before the five year period provided for in s 275(1A) has run its course, regardless of the fate of this and his other pending appeal, Cr Thaler will have accumulated three "strikes", and have enlivened s 275(1A) of the LG Act.
13. The fourth consideration identified in Doueihi, which is concerned with depriving constituents of their representative is problematic in this case. The second suspension order not having been stayed, Cr Thaler's constituents have been denied his voice in council on their behalf for three months. It is difficult to accept that constituents would expect or accept that their elected representative would abuse his position, and conduct himself in the way Cr Thaler has and, by his misconduct, lost his right to represent them on the council. It is difficult to accept that, unless Cr Thaler is capable of mending his ways, the loss of his voice in council would actually be a real loss for the constituents.
14. Suspension of Cr Thaler has, for the period of the suspension prevented him from exercising any functions as a councillor. Apart from the obvious absence of his voice in council, there is no evidence of this having an adverse impact on the constituents. Conversely, the conduct of Cr Thaler which has given rise to the second suspension departs so dramatically from what fair-minded, decent law-abiding citizens would expect of their elected representative that many would be likely to have little regret over his inability to act as a councillor for a three month period.
15. The sixth matter referred to in Doueihi, previous offences, has been touched on earlier in these reasons, albeit by reference to Howie J's Judgment on Cahyadi. There is no doubt that Cr Thaler has been guilty of previous proven misconduct. The second suspension order was akin to a second offence. As recorded above, the Tribunal is persuaded that Cr Thaler's previous misconduct and the misconduct which gave rise to the second suspension order should be seen as analogous to a "single episode of criminality". The timeframe within which the misconduct occurred, the similarity in the type, intent and effect of the misconduct, and the timeline with respect to the requesting and providing of Departmental reports and suspension decisions discussed earlier in these reasons inform that finding. The Tribunal does not find, or have occasion to find that the course undertaken by the Secretary in relation to those matters was so unreasonable that no reasonable decision-maker could have undertaken it, or that it was undertaken for an improper purpose, or otherwise malign. Having made the "single episode" finding, it is appropriate to evaluate whether, in all the circumstances, declining to confirm the Secretary's decision to impose a three month suspension on Cr Thaler would involve failing to "comprehend" the seriousness of the misconduct which led to the second suspension order.
16. Cr Thaler has not sought to justify, rationalise, or otherwise diminish the objective seriousness of his misconduct. There is no evidence from Cr Thaler acknowledging the wrongfulness of his conduct. He has tendered no apologies. Cr Thaler has demonstrated no remorse. There is no evidence directly or indirectly, expressly or impliedly establishing that Cr Thaler has any insight into his misconduct, its effect on the victims of it, or that the proceedings he has been going through as a result of that misconduct have led him to gain any such insight, as Basten JA explained in Lambert.
17. Finally, Cr Thaler is "inexperienced". His misconduct however cannot be, and sensibly his Counsel have not attempted to explain, or minimise its occurrence or seriousness as a product of inexperience, naivety or any other mitigating circumstance. As recorded earlier, common decency would prevent any reasonable person from engaging in the misconduct which has been proven against Cr Thaler.
18. In Lambert, at [83] Basten JA said that the punitive effect of disciplinary orders "may remind the Court that a protective order should be limited to that which is reasonably necessary to provide the required level of public protection". It was accepted in Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWSC 297, that reformation is the exception rather than the norm.
19. In Lambert, at [85] Basten JA cautioned against "analogous application of principles relevant to sentencing proceedings in the criminal jurisdiction" in protective proceedings. The principles with respect to concurrent and consecutive sentences and totality applied by sentencing courts are instructive, but do not govern, the exercise of the Tribunal's discretion in this case. That is particularly so as the Tribunal is not determining appropriate protective orders with respect to more than one breach for misconduct, but rather, Cr Thaler's first suspension order having not been disturbed on appeal, is determining appropriate protective orders with respect to his second, subsequent breach for misconduct. The Tribunal's has found that Cr Thaler's misconduct between 5 and 30 March 2025 constituted a single episode of misconduct, rather than acts of misconduct which were separate and distinct from those which resulted in the first suspension order, notwithstanding that there were different victims of such conduct, and that, although there were similarities, the misconduct itself varied significantly. Although considerable caution must be observed in doing so, reference to the principles of "totality" and "proportionality" in criminal sentencing are instructive.
20. In Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59; ]1988] HCA 70, at [56]-[57] (citations omitted) the High Court adopted a statement from Thomas, Principles of Sentencing, 2nd Edition, at p.56 that:

"The effect of the totality principle is to reduce a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is "just and appropriate". The principle has been stated many times in various forms: "When a number of offences are being dealt with and specific punishments in respect of them have been totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong": "When ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences."

1. The passage from Thomas was cited with approval in RH McL v The Queen (2000) 203 CLR 452; [2000] HCA 46, and R v Harris [2007] NSWCCA 130. In R v Holder (1982) 3 NSWLR 245 Street CJ said that "The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentence is appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences."
2. In Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, at [308], McHugh J observed that an "appropriate relativity between the totality of the criminality and the totality of the sentences was the objective of the totality principle". In R v MAK (2006) NSWCCA 381 the Court of Criminal Appeal cautioned that the principle must be applied without a suggestion that a discount is given for multiple offences stating that "A sentencing court must, however, take care when applying the totality principle. Public confidence in the administration of justice requires the court to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending". That statement was endorsed in R v Harris [2007] NSWCCA. Accepting, as recognised above, that the Tribunal is considering appropriate protective orders with respect to Cr Thaler's misconduct between 18 and 30 March 2025, those authorities provide support for the submission of the Secretary recorded above.

1. Division 3 of the LG Act is concerned with "Misconduct". Section 440F(1)(b) includes as misconduct, a failure by a councillor to comply with "an applicable requirement of a code of conduct". It is not in dispute that Cr Thaler's conduct on the dates relied on for the second suspension order constituted misconduct pursuant to s 440F(1)(b). Section 440G of the LG Act empowers a council by resolution at a meeting to formally censure a councillor for misconduct. Section 440H of the LG Act empowers the Departmental Chief Executive to investigate whether a councillor has engaged in misconduct, and, s 440H(5) arrange for a departmental report to be prepared in relation to such investigation. Those procedures were undertaken in this case. Section 440I empowers the Departmental Chief Executive to take disciplinary action for misconduct. Cr Thaler contends that the power was invalidly invoked. The Tribunal has rejected those claims. The power to take one or more of the actions identified in s 440I(2) of the LG Act was enlivened, and remains enlivened. Section 440I(2)(a) to (g) provide a series of actions, arguably of increasing seriousness, the most serious of which involves suspension from civic office for a period not exceeding three months. As the terms of the provision make clear, whether to impose a suspension, and, if so, its duration, involve the exercise of discretion. The Tribunal exercises those discretions de novo, having regard to the totality of the evidence before it. Section 440J of the LG Act provides "alternatives to disciplinary action". Declining to have regard to the operation of s 275(1A) of the LG Act in this case would, in the Tribunal's view, involve failing to consider an important component of the statutory scheme with respect to misconduct by a councillor.
2. If, contrary to the Tribunal's findings, the misconduct of Cr Thaler which resulted in the first suspension order and the misconduct which resulted in the second suspension order were separate and discrete courses of misconduct, provided that the process which resulted in the suspension order was procedurally fair, the undisputed evidence which has been identified above with respect to the latter would justify confirmation of the Secretary's decision. The Tribunal's finding that Cr Thaler's misconduct between 5 and 30 March 2025 constituted a single course of misconduct, and the evidence with respect to the timeline which led to the Secretary's decision to impose the second suspension order render confirmation of the Secretary's decision problematic.
3. Having regard to the purpose or object of the statutory scheme, the Tribunal finds that to confirm the second suspension order would, in all the circumstances which have been considered earlier in these reasons, not be appropriate. Cr Thaler having served the second suspension, although the issue has not been agitated, any suspension which the Tribunal might order, however short, thereby exceeding the three month maximum which could be imposed, may be beyond power. If within power, any order involving a suspension would mean that Cr Thaler had two "strikes", with only one "life" left for the remainder of his term(s) as a councillor, if his appeal against the third suspension order is successful, which could be a period of almost four years. The terms of s 275(1A) of the LG Act involve no discretion - the period of disqualification is five years. Placing Cr Thaler in that position would, in all the circumstances, be more than is reasonably necessary to achieve the objects or purposes of the legislation, and the principles discussed in Doueihi.
4. The dilemma which confronts the Tribunal if it is not to either confirm the Secretary's second suspension order, or set aside the order and, if empowered to do so, make a lesser suspension order, is that Cr Thaler, and the community, may perceive that, notwithstanding that the misconduct of Cr Thaler which gave rise to the second suspension order was more egregious than the misconduct which gave rise to the first suspension order, Cr Thaler has benefitted from his further and more serious misconduct, and that the Tribunal has failed to discharge its obligation to uphold the recognised principles in relation to the determination of appropriate orders pursuant to s 440L(2) of the LG Act. But for the Tribunal's findings with respect to a single course of misconduct over a period of 25 days, and the timing of the events which led to Cr Thaler's suspensions being imposed, such perceptions would be well founded. Cr Thaler's submissions with respect to the loss of the opportunity to reflect on his misconduct after the first suspension decision was made, the loss of the opportunity to question the "bifurcation" of disciplinary actions with respect to his March misconduct, and the absence of an explanation, or justification for the Secretary having done so are compelling. Although the Tribunal does criticise the Secretary's approach to the conduct which led to the second suspension, with the wisdom of hindsight, the decision was procedurally unfair to Cr Thaler. The Tribunal is not satisfied that, had Cr Thaler been afforded procedural fairness, no other decision could reasonably have been made. In all the circumstances, the Tribunal is not persuaded that it should confirm the Secretary's decision to impose the second suspension.
5. Section 440L(2) of the LG Act enables the Tribunal to take "one or more" of the seven actions identified in the provision. The evidence of Cr Thaler's misconduct, and the absence of any evidence of remorse, contrition or insight suggests that an order that he be counselled pursuant to s 440L(2)(a) of the LG Act would be unlikely to have any utility.
6. If the Tribunal does not order Cr Thaler's suspension for any period, a reprimand pursuant to s 440L(2)(b) would be irresistible. In disciplinary proceedings involving medical and legal practitioners, it has been accepted that, in an appropriate case, a reprimand can adequately reflect a number of the objectives of protective orders identified in the authorities to which the Tribunal has referred (Health Care Complaints Commission v Gazal [2023] NSWCATOD 92, and Council of the Bar Association of New South Wales v Mack (No 2) [2025] NSWCATOD 74 respectively). Reprimanding Cr Thaler publicly denounces his misconduct, and the upholding of proper standards and community confidence. Moreover, failing to denounce Cr Thaler's misconduct by reprimanding him could imply that the Tribunal condones his misconduct. The Tribunal unequivocally denounces Cr Thaler's misconduct. It is likely that, if Cr Thaler is reprimanded for his misconduct, that, and the other orders of the Tribunal will be made known throughout the Monaro region.
7. An order pursuant to s 440L(2)(c) directing Cr Thaler to cease engaging in his proven misconduct would also be irresistible. The Tribunal does not assume that Cr Thaler would comply with such an order. His failure to do so, of itself, could give rise to further proceedings pursuant to the LG Act, in which his continuing entitlement to be a councillor would be at risk. Breach of such an order by the Tribunal would also potentially expose Cr Thaler to a referral to the Supreme Court to be dealt with for contempt of the Tribunal pursuant to s 73(5) of the CAT Act.
8. Although the Tribunal has no objective basis for believing that any apology that Cr Thaler is ordered to make pursuant to s 440L(2)(d) of the LG Act would be genuinely made by him, the Tribunal will direct Cr Thaler to apologise to each of the victims of his misconduct, in the terms which these orders will specify. The orders reflect the terms of the Secretary's first suspension decision. Cr Thaler having elected to publish his offensive and hurtful remarks about his victims on social media, it is appropriate that Cr Thaler's apologies to the victims of his misconduct be published using the same electronic media as he used to publish those comments. The Secretary, or the General Manager of the council may take all appropriate steps to publish Cr Thaler's apologies on such other social media outlets as the Secretary considers appropriate. The Secretary may cause the apologies, and the Tribunal's decision to be published in newspapers circulating in the Monaro region and newspapers, such as the Sydney Morning Herald, which have wider circulation. The Tribunal imposes no restrictions on the publication of its decision.
9. Whether such an order would have any utility is questionable, but, given the magnitude of the insensitivity and inappropriateness of Cr Thaler's misconduct, an order directing him to undertake training pursuant to s 440L(2)(e) of the Act would be appropriate, if only to remind him, and the community, of the seriousness with which the Tribunal views Cr Thaler's misconduct, and the need for Cr Thaler to mend his ways if he is to have the chance to be able to continue as a councillor. In the absence of the parties agreeing on the form of such training and the provider of it, the Secretary may nominate such training.
10. The Tribunal must consider whether, in all the circumstances, and having regard to the legislative scheme of the LG Act, a raft of orders in these terms adequately reflects the objectives which emerge from the authorities. Albeit not to the extent that a suspension order would, orders in the terms discussed above would remind councillors of the public interest in the maintenance of high standards, and reassure the public at large that the Tribunal is concerned to maintain confidence in the standard of conduct of local councillors. Throughout these reasons, the Tribunal has denounced Cr Thaler's misconduct as unacceptable in strong terms. Orders in the terms proposed would make plain that such conduct is unacceptable, given that they result in a reprimand being recorded against Cr Thaler, they order him to cease engaging in misconduct which, if he does not, may result in the Secretary taking further action which, given that he already has one strike, and a pending appeal against another, would place his ability to continue as a councillor in serious jeopardy.
11. Cr Thaler having engaged in grossly offensive and humiliating statements towards his victims, and published them on social media, there is a justness in his having to publish his apologies to them utilising that same media. Between the print and electronic media identified in the Tribunal's order, there is little doubt that Cr Thaler's constituents, the Monaro community and the broader community will be aware of his misconduct, and the Tribunal's response to it. If Cr Thaler chooses not to undertake any training which he is directed to undertake, or not to do so bona fide, those matters too, as orders of the Tribunal would have potential consequences pursuant to the LG Act, and pursuant to s 73(5) of the CAT Act.
12. On balance, and accepting that minds could readily disagree, the Tribunal is disposed to make orders in the terms identified above. The Tribunal is comfortably satisfied that the concern advanced by the Secretary, that anything short of an order suspending Cr Thaler would reward his post 17 March 2025 misconduct, is addressed by the cumulative effect of the orders which the Tribunal will make. Put bluntly, although Cr Thaler may have avoided a second "strike", he remains at grave risk of enlivening s 275(1A) of the LG Act, and, if he fails to comply with the Tribunal's orders may expedite that risk.

(1) Pursuant to s 440L(4)(c) of the Local Government Act 1993 (NSW) the Respondent's decision of 28 July 2025 to suspend the Appellant from civic office for a period of three months is set aside.

(2) Pursuant to s 440I(2)(b) of the Local Government Act 1993 (NSW) the Appellant is reprimanded.

(3) Pursuant to s 440I(4)(c) of the Local Government Act 1993 (NSW) the Appellant is ordered to cease engaging in the misconduct identified in the decision of the Respondent of 28 July 2025.

(4) Pursuant to s 440I(4)(d) of the Local Government Act 1993 (NSW), within 14 days of this order the Appellant is ordered to make apology:

(a) in writing;

(b) addressed to each of the persons named in the online comments referred to in the decision of the Respondent of 28 July 2025;

(c) in the terms approved by the Secretary;

(d) publicly available on any social media profile and/or account with which the Appellant has a content creation or production contributor affiliation, and;

(e) make available to the General Manager (GM) of council for publication by the GM in any manner which the GM considers is necessary or expedient to reach the greatest number of Snowy Mountains residents.

(5) Pursuant to s 440I(4)(e) of the Local Government Act 1993 (NSW) the Appellant is ordered to undertake such course of training with respect to council's Code of Conduct as the Secretary considers appropriate within 28 days of the Secretary informing the Appellant of the details of such course of training.

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.

04 March 2026 - Par 11 - formatting rectified; the word "he" amended the word "the"; paragraph numbering updated.

10 March 2026 - Par 26 - typographical error "he" amended to "the"