Deputy Secretary, Local Government Planning and Policy v Byrne - [2021] NSWCATOD 112 - NSWCATOD 2021 case summary — Zoe

NSWNSWCATOD

Deputy Secretary, Local Government Planning and Policy v Byrne

[2021] NSWCATOD 112

NCAT Occupational|2021-07-21

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At a glance

Source facts

Court

NCAT Occupational

Decision date

2021-07-21

Catchwords

(1988) 166 CLR 59 Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110
(2004) 138 FCR 107 Re Councillor Hans Allgayer (unreported, Pecuniary Interest and Disciplinary Tribunal, 10 June 2013) Rich v ASIC [2004] HCA 42
220 CLR 129 Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279

Source

Original judgment source is linked above.

Catchwords

(1988) 166 CLR 59 Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110(2004) 138 FCR 107 Re Councillor Hans Allgayer (unreported, Pecuniary Interest and Disciplinary Tribunal, 10 June 2013) Rich v ASIC [2004] HCA 42220 CLR 129 Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279

Judgment (17 paragraphs)

[1]

REASONS FOR DECISION

On 17 September 2020 the Deputy Secretary, Local Government, Planning and Policy (the Deputy Secretary) applied to the Tribunal pursuant to s 440J(3) of the Local Government Act 1993 (the LG Act), referring for consideration a report concerning the respondent Councillor Darcy Byrne, Mayor of Inner West Council (the Council).
The Deputy Secretary stated that on the basis of a departmental report prepared under s 440H of the LG Act he was satisfied that Clr Byrne engaged in misconduct, as defined in s 440F(1)(b) and s 440F(1)(d) of the LG Act, at the meeting of the Council held on 26 March 2019 and when that meeting was reconvened on 9 April 2019, and at the meeting of the Council held on 30 April 2019. The applicant stated that having considered the departmental report, which included submissions from Clr Byrne on the question of breach, and submissions from Clr Byrne on the proposed referral, he had determined that the matter should be referred to the Tribunal. The Deputy Secretary stated that he was of the view that it would be in the public interest for the matter to be subject to a hearing by the Tribunal, and that the seriousness of the matter may warrant the imposition of a period of suspension beyond that open to him to impose.

[2]

Background

The factual background to the proceedings was summarised in Byrne No 1 as follows: 4 The background facts are largely not in dispute. The following summary is based on the agreed background summary provided in the applicant's written submissions, and the documents in evidence including transcripts of relevant Council meetings. 5 At its meeting on 28 August 2018 the Council considered and approved an amendment to the Marrickville Development Control Plan (the DCP) for the Victoria Road Precinct. 6 On 29 August 2018 Clr Pauline Lockie posted on her Facebook page a publication referring to the DCP, stating: "… I voted against it, because I think it's wrong to expose our community to such a huge risk. … I'm appalled that other Councillors ignored strong legal and planning advice from our own staff in favour of developers - and that the Mayor was the one pushing this. So much for 'Save Marrickville'." 7 Another councillor, Clr Colin Hesse, posted a comment on the Facebook post, following a post by Clr Byrne of a link to a Council media release, stating "Here's a promotion from the developers". Other individuals posted comments. 8 On 26 March 2019 Clr Byrne's solicitors sent a letter to Clr Lockie, stating that Clr Byrne complained that he was defamed by comments made by third parties on a public Facebook post made by her on or around 29 August 2018; that Clr Lockie had specific knowledge/notice of those comments; and that she had the ability or power to remove the comments but had failed to do so within a reasonable time. The letter identified comments published by Clr Hesse and by two other individuals. The letter stated that one comment conveyed defamatory imputations with respect to Clr Byrne and all other Council members; and that Clr Hesse's comment and the comment of another individual conveyed defamatory imputations with respect to Clr Byrne. The letter required Clr Lockie to delete the comments and post a public apology on Facebook. The letter concluded: "This letter is to be treated as a concerns notice pursuant to the Defamation Act 2005 (NSW) and a genuine steps letter in an attempt to arrive at settlement without going to Court." 9 A letter was sent on the same date to Clr Hesse, stating that Clr Byrne complained that he was defamed by a Facebook comment on a public Facebook post published by Clr Lockie on or around 29 August 2018; and that he required Clr Hesse to delete the comment and to post a public apology on Facebook. The letter concluded with the same reference to the Defamation Act as in the letter to Clr Lockie. 10 Agenda Item 1 for the Council meeting on 26 March 2019 was the consideration of a further report about the proposed amendment to the DCP and draft amendments to the Marrickville Development Contributions Plan. The report recommended that Council place on public exhibition the draft amendments to the Development Contributions Plan and the DCP, and that a further report be received by Council following the public exhibition period. 11 Clr Byrne chaired the Council meeting on 26 March 2019. When the meeting came to consider Agenda Item 1, Clr Byrne moved a motion that included the two recommendations in the report, and two additional points (the Byrne Motion), one of which was that the Council: 4. Call on Councillors who following the adoption of the DCP have made potentially defamatory statements and imputations about other Councillors or who through those comments may have brought the Council into disrepute to withdraw these comments and apologise. 12 Clr Byrne participated in the debate that occurred on 26 March 2019, and put the notice of motion. At that point the meeting became inquorate, and the meeting was adjourned to 9 April 2019. 13 When the meeting resumed on 9 April 2019 Clr Hesse and Clr Lockie declared what was described in the Minutes as "a significant, pecuniary interest in Item 1 as point 4 of the motion is the subject of an unresolved legal matter to which they are a party to and they will leave the chamber during discussion and voting". Clr Louise Steer declared "a significant, non-pecuniary interest in Item 1 as she has been instructed to give pro bono legal advice to Clr Hesse". The Minutes record that Clr Hesse and Clr Lockie left the chamber during discussion and voting. The motion as moved by Clr Byrne was carried, Clr Byrne voting in favour. 14 On 16 April 2019 Clr Byrne's lawyers wrote to Clr Lockie and required her, as part of the settlement proposed in the concerns notice, to delete specified posts, and to withdraw and apologise for the posts at the Council meeting on 30 April 2019. On 30 April 2019 Clr Byrne's lawyers wrote to Clr Hesse's solicitor, Clr Steer, enclosing text of an apology acceptable to Clr Byrne and requiring him to publish it on his Facebook page and to withdraw and apologise for his comment at the next Council meeting. 15 At the Council meeting on 30 April 2019 Item 12 on the Agenda was a motion to rescind Parts 3 and 4 of the resolution passed at the 26 March 2019 meeting (the Rescission Motion). Clr Lockie and Clr Hesse declared what was described in the Minutes as "a significant, pecuniary interest in Item 12 Notice of Motion to Rescind: C0319(2) Item 1 Draft Development Control Plan and Contributions Plan Amendments for Victoria Road (Precinct 47) as is the subject of an unresolved legal matter to which they are a party to and they will leave the chamber during discussion and voting". During the meeting Clr Steer declared "a significant non-pecuniary interest in Item 12 Notice of Motion to Rescind: C0319(2) Item 1 Draft Development Control Plan and Contributions Plan Amendments for Victoria Road (Precinct 47)". 16 Clr Byrne participated in the debate. A motion to defer the Rescission Motion was lost, Clr Byrne voting against. Clr Byrne put a motion that the Rescission Motion be refused. That motion was passed by Council, Clr Byrne voting in favour. The Minutes record that Clrs Lockie, Hesse and Steer were absent and returned to the meeting after the Rescission Motion was refused. 17 At a Council meeting on 28 May 2019 Clr Lockie delivered a public apology in the terms agreed between her and Clr Byrne's solicitors, as follows: "On 29 August 2018 I published a post on Facebook of and concerning Mayor Darcy Byrne. I accept that the allegations made by others on my post were false and defamatory of his good character and I apologise to Mayor Byrne for the embarrassment and hurt to feelings that it has caused him." 18 Clr Byrne did not declare a conflict of interest at the Council meetings of 26 March 2019, 9 April 2019 and 30 April 2019.

[3]

Allegations and findings

The allegations of misconduct were: 19 The applicant alleges that Clr Byrne engaged in misconduct as defined in s 440F(1) of the LG Act, as follows: (1) Allegation 1: It is alleged that Clr Byrne had a non-pecuniary conflict of interest in the consideration of the 26 March 2019 motion, which was moved by him at the meeting of Council held on 26 March 2019, that he did not avoid or appropriately manage, as required by clauses 5.4, 5.6 and 5.10 or 5.11 of the Code of Conduct. (2) Allegation 2: It is alleged that Clr Byrne, at the Council meeting held on 26 March 2019, made an allegation that Clr Hesse and Clr Lockie had engaged in conduct that was likely to bring them, as council officials, into disrepute. In doing so, it is alleged that Clr Byrne breached clause 3.1(a) of the Code of Conduct. (3) Allegation 3: It is alleged that Clr Byrne, at the Council meeting held on 26 March 2019, made an allegation that Clr Hesse and Clr Lockie had, in effect, breached the Code of Conduct by them having engaged in conduct that was likely to bring Council into disrepute. In doing so, it is alleged that Clr Byrne breached clauses 9.10, 9.11 and 9.12 of the Code of Conduct. (4) Allegation 4: It is alleged that Clr Byrne, at the Council meeting held on 26 March 2019, engaged in conduct that was improper, unethical and/or an abuse of power, when he used his position as Mayor and as a councillor, to move a motion in which he is alleged to have had a conflict of interest. In doing so, it is alleged that Clr Byrne breached clause 3.1(c), (d) and (f) of the Code of Conduct. (5) Allegation 5: It is alleged that Clr Byrne, at the Council meeting held on 26 March 2019, made personal reflections on Clr Hesse and Clr Lockie, when he said words to the effect that Clr Hesse and Clr Lockie had engaged in conduct that was likely to bring Council into disrepute. In doing so, it is alleged that Clr Byrne committed an act of disorder and as such, engaged in misconduct and breached clauses 3.1(b) and 3.22 of the Code of Conduct. (6) Allegation 6: It is alleged that Clr Byrne had a non-pecuniary conflict of interest in the consideration of the Rescission Motion and two related motions that were moved when this matter was considered at the meeting of Council held on 30 April 2019, that he did not avoid or appropriately manage, as required by clauses 5.4, 5.6 and 5.10 or 5.11 of the Code of Conduct, including this motion that was foreshadowed and moved by him: "THAT the Rescission Motion be refused (30 April 2019 motion) The "Rescission motion" being the following notice of motion that was included as Item 12 in the agenda for the meeting: We, the abovementioned Councillors, hereby submit a Notice of Motion to rescind Part 3 and 4 of the Council's resolution at the 26 March 2019 Council Meeting being C0319(2) Item 1 Draft Development Control Plan and Contributions Plan Amendments for Victoria Road (Precinct 47)."
Clr Byrne contended that Allegations 1, 2, 3, 4 and 5 all derived from the same conduct, being the discussion at the Council meeting of 26 March 2019 as to the conduct of Clrs Hesse and Lockie, and that Allegation 6, which the Deputy Secretary admitted raised similar issues to Allegation 1, dealt with the same issue raised on a different date; and accordingly, the allegations were duplicitous.
At [51] in Byrne No 1 I concluded that in professional disciplinary proceedings such as the present proceedings, the rule against duplicity does not apply in the same terms as in criminal proceedings; and that the issue is ultimately one of fairness. The allegations arise out of a related course of conduct, but are each separate descriptions of conduct constituting the separate allegations relied on by the Deputy Secretary. While the allegations were based on a similar factual matrix, each had distinct legal elements and referred to separate aspects of the Code of Conduct, and there were two separate types of misconduct alleged. At [52] I concluded that there was no uncertainty or procedural unfairness in how the allegations had been framed and put to Clr Byrne, and that any possible unfairness arising in terms of appropriate orders under s 482A of the LG Act, should a finding of misconduct be made, so as to ensure that Clr Byrne was not sanctioned twice for the same misconduct, could be addressed at that point.
In Byrne No 1 I found that Clr Byrne had a non-pecuniary conflict of interest in the matter before Council at its meeting on 26 March 2019, resumed on 9 April 2019, and that that non-pecuniary conflict of interest was significant: see [58]-[84]. The steps in reaching that conclusion were, in summary, that Clr B's interest in maintaining and defending his reputation, which he considered had been impugned or harmed by the Facebook posts, was more than a personal view or opinion, and was a private interest, and accordingly a "non-pecuniary interest" as defined in cl 5.1 of the Code of Conduct. While there was a public interest in the restoration of the reputation of the Council and that of other councillors who voted for the DCP, the existence of Clr Byrne's concern for the reputation of Council and other councillors did not detract from there being a private interest in the maintenance of his personal reputation. I concluded that a reasonable and informed person would perceive that in proposing and voting on the motion requiring the withdrawal of the comments and an apology Clr Byrne could be influenced by his private interest in seeking those steps in order to vindicate his personal reputation which he considered had been impugned, and that meant that Clr Byrne had a non-pecuniary conflict of interest as defined in cl 5.2 of the Code of Conduct. The requirement that the councillors withdraw and apologise involved conferral or loss of a personal benefit on Clr Byrne, which was other than one conferred or lost as a member of the community or a broader class of people affected by a decision, and the non-pecuniary conflict of interest was significant as defined in cl 5.9(f) of the Code of Conduct.
At [87] I concluded that Clr Byrne had the same significant non-pecuniary conflict of interest in respect of the Rescission Motion on 30 April 2019 as he had in respect of the motion at the earlier meeting.
I found that Clr Byrne did not identify and disclose the non-pecuniary conflict of interest as required by cl 5.4 and 5.6 of the Code of Conduct or manage that conflict of interest in accordance with cl 5.10 or 5.11 of the Code of Conduct, and that Allegations 1 and 6 were established (at [93], [135]). I found that in alleging that Clrs Hesse and Lockie had made imputations that were defamatory of him, Clr Byrne had conducted himself in a manner likely to bring them as council officials into disrepute, in breach of cl 3.1(a) of the Code of Conduct, and Allegation 2 was established (at [101]). I found that in making allegations at a Council meeting that Clrs Hesse and Lockie had in effect breached the Code of Conduct were corrupt, other than by way of a complaint made or initiated under the Procedures for the Administration of the Model Code of Conduct (the Procedures Code), Clr Byrne had failed to comply with cll 9.11 and 9.12 of the Code of Conduct, and that Allegation 3 was established (at [110]). In relation to Allegation 4, I found that Clr Byrne's conduct in using his position as Mayor and a Councillor to move a motion in which he had a conflict of interest was improper and unethical, and a misuse of his position as a councillor, in breach of cl 3.1(c) and (f) of the Code of Conduct. However I was not satisfied that that could be characterised as an "abuse of power", so as to be in breach of cl 3.1(d) of the Code of Conduct: and so Allegation 4 was established in part (at [121], [122]). I found that in making personal reflections on Clrs Hesse and Lockie, saying words to the effect that they had engaged in conduct likely to bring the Council into disrepute, Clr Byrne had committed an act of disorder, in breach of cl 3.1(b) of the Code of Conduct; however I was not satisfied that a breach of cl 3.22 of the Code of Conduct had been established, and accordingly Allegation 5 was established in part (at [128]-[130]).
I concluded (at [136]) that the failure to comply with applicable provisions of the Code of Conduct was "misconduct" as defined in s 440F(1)(b) of the LG Act, and that committing an act of disorder at a Council meeting was "misconduct" as defined in s 440F(1)(d) of the LG Act.

[6]

Clr Byrne's evidence

In his written statement Clr Byrne stated that he was concerned after the comments published and endorsed on Facebook by Clrs Hesse and Lockie that community members might believe that he, the Council and the other councillors who had voted in favour of the DCP were corrupt. There had been a significant amount of media coverage and consequent Facebook commentary in relation to the posts and he had a general concern that these untrue, defamatory comments would be repeated about him, the Council and the other councillors who had voted in favour of the DCP.
He became aware that at the meeting of 26 March 2019 the issue of the DCP would be considered again, and concerned that Clrs Lockie and Hesse would repeat the comments they had published and endorsed on social media at the Council meeting that night. He instructed his solicitors to send letters to them that afternoon noting that their comments were a breach of the Defamation Act and asking that they withdraw and apologise for the earlier comments. He did not seek damages or his costs. He thought this was a sensible, moderate and respectful way the matter could be concluded.
Clr Byrne stated that he took the course of issuing solicitors' letters rather than making complaints either to the Office of Local Government (OLG) or to the General Manager of the Council, because those complaints processes take many months to resolve and he was concerned with putting a stop to what he saw as destructive behaviour immediately. The OLG can impose serious disciplinary sanctions on councillors and while he was concerned by the comments and worried about the consequences for his reputation and the reputation of the Council and other Councillors, he did not want to see Clrs Hesse or Lockie formally punished. His view was that what they had attempted to do was misguided political brinkmanship and he thought that issuing solicitor's letters would be an effective way to have them change their future conduct without imposing a formal punishment or the stress of an investigative process on them.
Clr Byrne accepted that his conduct in moving the 26 March 2019 motion and speaking to it involved him advancing a significant non-pecuniary interest being his reputation, in breach of cll 5.4, 5.6 and 5.10 or 5.11 of the Code of Conduct, and he is sorry for that conduct. He regrets that in moving the motion on 26 March 2019 he engaged in conduct that was improper and unethical by using his position as Mayor and as a councillor in moving a motion in which he had a conflict of interest in breach of cll 3.1(c), (d) and (f) of the Code of Conduct. He regrets his conduct in alleging at the Council meeting of 26 March 2019 that Clrs Lockie and Hesse had breached the Defamation Act which brought them into disrepute, and in future will direct all complaints about other councillors' conduct through the official complaints procedures. He accepts that he should not have moved the 26 March 2019 motion and that if someone else had moved it he should have declared that he had a significant non-pecuniary conflict of interest, and removed himself from the Council meeting; he regrets he failed to take those steps.
Clr Byrne stated that he misunderstood the meaning of a non-pecuniary interest as defined by the Code of Conduct. The understanding he had until the decision of the Tribunal was that defending his public reputation involved the expression of a personal political view within the meaning of the Code of Conduct and that his reputation was not a private interest. He now understands that it is, and he will appropriately manage matters affecting his reputation in the manner of a significant non-pecuniary private interest in future Council matters.
Clr Byrne stated that there had been one briefing session before the new Code of Conduct was introduced at the Council, and the session on the Code of Conduct was not a very detailed briefing, in particular there was no explanation of what constituted a significant non-pecuniary conflict of interest; to the best of his recollection the words "significant" and "private interest" were never explained or clarified. Before the 26 March 2019 meeting he spoke to Council officials to clarify that he was permitted to move the motion calling on the Councillors to apologise and withdraw any defamatory comments, and they said he could and this was within the scope of the Code of Conduct and the Code of Meeting practice. At the meeting certain Councillors objected to him moving and considering the motion; he did not regard these as serious contributions because he could not comprehend how his public reputation was of private interest. He sought advice from the Governance Manager of the Council during the meeting, who said Council was in its power to resolve to ask a Councillor to withdraw a comment and apologise. He did not ask Council officials whether his public reputation was a private interest that needed to be disclosed at the meeting and appropriately managed, it did not cross his mind that this was a possible interpretation of the Code of Conduct. He has repeatedly requested training in Councillors' legal and regulatory obligations from multiple managers.
Clr Byrne stated that in future he intends to strictly adhere to the Code of Conduct and the Code of Meeting Practice. He believes he has a better understanding of the Codes, and he will be scrupulous in appropriately managing conflicts of interest and all other requirements.
Clr Byrne stated that he is sorry that his actions may have caused Clrs Lockie and Hesse distress.
In oral evidence Clr Byrne stated that he has sought advice from the Council's General Manager and General Counsel as to whether, if he is suspended from civic office, he would be eligible to stand as mayor when that election is held at the first Council meeting after the Council elections due in September 2021; and he has been told that they cannot confirm that at this stage. Clr Byrne stated that he has not yet nominated, but he intends to do so when nominations open.
In cross examination Clr Byrne accepted that if re-elected he would need to make decisions with which others might disagree; that some people might make comments in social media about his decisions; that it is possible he might find some of those comments to be defamatory; that the types of events that occurred in 2019 might happen again; and he agreed that his reputation is important.
Clr Byrne accepted that the Code of Conduct complaint investigation, the report of which is exhibit A3, found that he had breached cl 3.1(a) of the Council's Code of Conduct. He accepted that in Byrne No 1 he had been found to have breached cl 3.1(a) of the Code of Conduct.
Clr Byrne accepted that he used the words recorded at para [30] of the Deputy Secretary's submissions in reply at a Council meeting on 23 February 2021, in responding to a motion moved by Clr Passas that he step down from his position as Mayor until the Tribunal proceedings were resolved: You've moved your motion calling for me to stand down, which I'll rule out of order, which is obviously as you're aware a breach of the code of conduct itself to move such a motion, and a much more serious breach than the trumped up charges that the Office of Local Government have brought against me.
Clr Byrne stated that he regrets having used those words. Asked if at the time he made that statement he understood the allegations that had been brought to the Tribunal, he stated that he has a much better understanding now after the Tribunal decision than he had at the time. Asked about the words "trumped up" Clr Byrne stated that as was the case with his response in the interview by departmental investigators, he was perturbed, upset and confused as to why breaches by others were not investigated and he was. He accepts that he got it wrong, and he has read the Tribunal decision carefully. He had not understood the definition of private interest and non-pecuniary interest and has a much clearer understanding and wants to learn from it.
Clr Byrne acknowledged that the term "non-pecuniary interest" was not new in 2019, however he had not understood it and should have. He had failed to stick to the procedures for lodging complaints about breaches of the Code of Conduct by other councillors, and regrets not doing so. Clr Passas has continued to table motions for him to step down, and he has recused himself and left the meetings.
In re-examination Clr Byrne explained the context of his remarks on 23 February 2019 to have been that he had opened the meeting, and Clr Passas had immediately moved the motion; he regrets that that is how he responded.

[7]

Deputy Secretary's submissions

The Deputy Secretary submits that this is not a case where the Tribunal should exercise its discretion not to take action under s 482A of the LG Act, and counselling or a reprimand would not reflect the seriousness of the misconduct or achieve the protective aims of s 482A of the LG Act. The Deputy Secretary submits that while the misconduct is serious it does not rise to the level that would justify a period of disqualification, and a period of suspension would be appropriate. The Deputy Secretary submits that reprimanding and suspending Clr Byrne from civic office would provide the requisite specific and general deterrence by sending a clear signal to him and to all councillors in NSW, that such misconduct is unacceptable.
The Deputy Secretary submits that the Tribunal's jurisdiction in taking action under s 482A is at least in part protective, both of the public and the maintenance of high standards among local government councillors. Principles of specific and general deterrence apply. As stated in Office of Local Government v Neville [2018] NSWCATOD 31 (Neville) at [39], the important and indirect effects of a disciplinary order include that it reminds other councillors of the public interest in the maintenance of high standards, gives emphasis to the unacceptability of the conduct involved, and by speaking to the public at large, seeks to maintain confidence in the standard of conduct of local councillors. The Tribunal is required to have regard to whether action short of depriving the constituents of their representative, that is action short of suspension from civic office or disqualification, can adequately punish Clr Byrne for his conduct, and if the Tribunal is minded to consider suspension or disqualification it must consider the impact of this on the affected constituents: Neville at [41], [42], applying Mehajer v Chief Executive of the Office of Local Government [2014] NSWSC 1804 (Mehajer).
The Deputy Secretary acknowledges that Clr Byrne should not be exposed to disciplinary sanction twice for the same conduct. The Deputy Secretary submits that there are three aspects of Clr Byrne's misconduct, each of which requires the Tribunal to take action under s 482A of the LG Act: 1. Clr Byrne's conduct of 26 March 2019 and 9 April 2019 in proposing the Byrne Motion, participating in the debate of the motion, making various procedural rulings during the debate, and voting in favour of it (corresponding to Allegations 1 and 4); 2. Clr Byrne's conduct of 30 April 2019 in putting the motion that the Rescission Motion be refused, participating in the debate of that motion, and voting in favour of it (corresponding to Allegation 6); 3. Clr Byrne's conduct of 26 March 2019 in alleging that Clrs Lockie and Hesse had made imputations about Clr Byrne having been corrupt (corresponding to Allegations 2, 3 and 5).
The Deputy Secretary submits that although the conduct of 30 April 2019 the subject of Allegation 6 relates to the same significant non-pecuniary conflict of interest as Allegation 1, Clr Byrne had had a further opportunity before that meeting to reflect on his position and declare and manage his conflict of interest, and failed to do so; and this further conduct is not duplicative of the conduct the subject of Allegation 1. The Deputy Secretary submits that the third aspect of Clr Byrne's conduct is of a different character to that of the first aspect.
The Deputy Secretary submits that the Tribunal should have regard to the principle of totality, however that should not operate so as to require the Tribunal to take less forceful action if that is warranted.
The Deputy Secretary submits that each of the aspects of Clr Byrne's misconduct is serious, the most serious being his failure to declare and manage a significant non-pecuniary conflict of interest. Clr Byrne denied that he had a conflict of interest and failed to take any steps to manage that conflict of interest on the two separate occasions when he was required to do so. His failure to manage a significant non-pecuniary conflict of interest was exacerbated by the fact that he stood to personally benefit from the passing of the Byrne Motion; his extensive participation in the consideration of the matter; and his decision to move the Byrne Motion instead of the Council officers' recommendation, and to not have councillors vote on that principal motion separately. The consequence of the latter decision was that Clrs Lockie and Hesse were required to disclose conflicts of interest and absent themselves from the meeting, and were prevented from voting on the officers' recommendation, on a matter that was of significance to the Council and the community. Secondly, by making the allegations against Clrs Hesse and Lockie that he did, Clr Byrne engaged in conduct that showed a disregard for the provisions of the Code that prohibit such allegations being made in a public Council meeting and a disregard for the Council's adopted Procedures Code.
The Deputy Secretary submitted that in addition to the seriousness of the misconduct, the Tribunal should have regard to Clr Byrne's circumstances as a councillor. He is a very experienced local councillor, having been elected to the former Leichhardt Council in 2008 and serving two terms as Mayor of that Council, and having occupied the position of Mayor of Inner West Council since 2017. The misconduct is deserving of a greater degree of censure than similar conduct by a less experienced councillor would be. Clr Byrne is the mayor of the Council, an important position of leadership and responsibility towards other councillors and members of the community, and his misconduct justifies a greater degree of censure.
The Deputy Secretary submits that there are no previous Tribunal findings against Clr Byrne, which is to his credit, however he has been found to have breached cl 3.1(a) of the Code of Conduct in the Code of Conduct Complaint Investigation Report dated 22 November 2019, a breach of the same provision as in these proceedings.
The Deputy Secretary acknowledges that Clr Byrne was entitled to deny the allegations and put the Deputy Secretary to proof. However, his characterisation of the allegations against him, in the record of the interview with departmental investigators on 26 September 2019, as "minor process issues", and in his reference in the Council meeting on 23 February 2021 to "trumped up charges", failed to appreciate the importance of ensuring allegations of breaches of the Code of Conduct are dealt with in accordance with the Procedures and not otherwise. The Deputy Secretary submits that that makes it more likely that in circumstances likely to arise again, the conduct is more likely to occur again.
The Deputy Secretary submits that assistance may be derived from previous decisions of the Tribunal, acknowledging that each case turns on its own facts and circumstances. The circumstances in Office of Local Government v Shelley[2018] NSWCATOD 103 (Shelley), involving a failure to disclose and manage a non-pecuniary conflict of interest in which the Tribunal imposed a reprimand and suspension of remuneration, are analogous. In Re Councillor Hans Allgayer (unreported, Pecuniary Interest and Disciplinary Tribunal, 10 June 2013) (Allgayer) and Office of Local Government v Smith [2014] NSWCATOD 92 (Smith), involving a failure to disclose a significant non-pecuniary conflict of interest, the Tribunal imposed a suspension. The circumstances are objectively more serious than those in Allgayer because of Clr Byrne's position as mayor and because he stood to personally benefit from the Byrne Motion being passed. The circumstances are objectively more serious than the misconduct in Smith, and those in Meineke v Acting Chief Executive, Office of Local Government [2016] NSWCATOD 135 (Meineke).
The Deputy Secretary submits that having regard to the applicable principles (as summarised at [37] above), the seriousness of the misconduct, Clr Byrne's circumstances as a councillor, and his lack of insight, a period of suspension from civic office of between three and six months would be appropriate. A reprimand would be insufficient to address the serious misconduct in twice failing to disclose a significant non-pecuniary conflict of interest and twice using Council powers to pass a motion he stood to potentially personally benefit from, and making allegations during a Council meeting that other councillors had breached the Code of Conduct. This is not a case where action short of depriving constituents of their representative for a period of time could adequately punish Clr Byrne. Suspending Clr Byrne from civic office would be appropriate despite the impact on Council constituents. Such impact would be minimal and proportionate to the important objective of taking adequate action in response to the misconduct: the Council is a relatively large Council with 15 councillors, three per ward, which means that constituents in his ward could direct any issues to the other two councillors or any of the others including the Deputy Mayor; and the Council has a deputy mayor who would exercise mayoral functions if Clr Byrne were suspended.

[8]

Clr Byrne's submissions

Clr Byrne submits that the principles of specific and general deterrence are relevant. If the matter were to be determined solely by aspects of specific deterrence the Tribunal should consider imposing no penalty at all: Clr Byrne has no previous antecedents, is not likely to contravene again, and has suffered the cost and public ignominy of defending these proceedings and having findings made against him. The requirements of general deterrence would be satisfied by making an order for counselling or a reprimand.
In written submissions Clr Byrne submitted that the proceedings do not involve punishment. Disciplinary proceedings, including those relating to disciplinary hearings against a legal practitioner (Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279; [1957] HCA 46), proceedings for disqualification orders for directors (ASIC v Adler [2002] NSWSC 483), or cancellation of the registration of liquidators (Albarran v Members of the Companies and Liquidators Board [2007] HCA 23; (2007) 231 CLR 350) do not involve punishment. The jurisdiction is protective, and it is important to consider specific deterrence of the person found to have engaged in misconduct, and also general deterrence, that is deterring others who might be tempted to engage in similar conduct: Office of Local Government v Toma [2016] NSWCATOD 21 (Toma) at [28]. Clr Byrne submitted that this case involves an application for penalties of a civil nature, the exposure to loss of office involving exposure to a penalty or forfeiture: Rich v ASIC [2004] HCA 42; 220 CLR 129 at [28].
Clr Byrne submits that the six allegations should be properly grouped as a single course of conduct, relying on CFMEU v Cahill [2010] FCAFC 39 (CFMEU v Cahill). All of the allegations and resulting findings come from allegations that refer to the same or interrelated conduct, being the attempt by Clr Byrne to have the councillors withdraw their comments against him, and should all be grouped together.
If there is more than one allegation after the grouping process, Clr Byrne submits that the Tribunal should consider the application of the principle of totality, in accordance with Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 63.
Clr Byrne submits that the period of suspension proposed by the Deputy Secretary is well outside the range of other cases and would give rise to a legitimate sense of grievance. The conduct in Shelley and Smith was more serious than that alleged here, and in the former case the Tribunal imposed a reprimand, and the latter, a suspension for a period of one month. The suspension sought by the Deputy Secretary has a broader effect on the system of local government, and would mean that Clr Byrne would be unable to assist his constituents, which would not only punish him but his constituents. The effect on Clr Byrne is even starker given the forthcoming Council elections, as Clr Byrne would be significantly hampered in terms of the election process by being suspended as councillor, and might be prevented from nominating as Mayor, or from being able to vote for the Mayor. It is now more than two years since these events and Clr Byrne has not further contravened the LG Act in that time.
In oral submissions Clr Byrne submitted that while the proceedings are not "civil penalty" proceedings as defined in the NCAT Act, they are civil penalty proceedings more broadly. They are civil proceedings, involving possible sanctions of disqualification or suspension, sanctions which are penalties. Clr Byrne accepted that the primary purpose is protective, and not punitive, which does not preclude steps being taken aimed at deterrence that may have a punitive effect. Clr Byrne submits that to the extent that the decision in Mehajer refers to "punishment", it should not be followed.
Clr Byrne submits that the evidence is that he misunderstood his obligations, and now realises what his obligations were; he has demonstrated contrition and remorse and how he has learned from the experience; and he accepts that it was a bad error. His evidence was frank and not evasive, and essentially not challenged. Clr Byrne relies on the character references from Clr Scott as to his remorse about his behaviour, Dr Glen who confirms his role in the community, including advocacy for the disadvantaged, and Hon Mary Gaudron QC as to his character and his longstanding and genuine commitment to the community. He has made mistakes but has not acted dishonestly. He is not alone in not understanding what a significant non-pecuniary interest is, the legislation is not clear and the definition is cryptic. What is important is what has happened since the Tribunal decision, and he is not likely to engage in similar conduct in future.
Clr Byrne submits that the misconduct found falls at the low end of the scale, when previous Tribunal decisions are considered. The conduct was not hidden, and Clr Byrne took advice from Council officers at the time, and he is otherwise of good character. Also relevant are that public findings have been made against him, and he has had the trauma of the proceedings.

[9]

Principles for taking action under s 482A

Previous decisions of this Tribunal have described the jurisdiction to take action in disciplinary proceedings under the LG Act as being protective in nature. In Office of Local Government v Campbell [2016] NSWCATOD 8 (Campbell) the Tribunal drew an analogy with professional disciplinary matters, holding that the jurisdiction is disciplinary and protective. In Neville the Tribunal referred to the decision of Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [4], where his Honour noted that care should be exercised in relying on cases concerned with legal practitioners when dealing with the regulation of the medical profession, having regard to the significant differences in institutional structures in which those professions operate, and the differences in function. While acknowledging that there are likely to be some variations in the applicable principles due to the differences between misconduct in elected office and professional misconduct, the Tribunal in Neville concluded that the Tribunal's jurisdiction is at least in part protective, both of the public and the maintenance of high standards of local councillors. In Toma the Tribunal concluded at [28] that as the jurisdiction is protective, it is important to consider specific deterrence of the person found to have engaged in misconduct, and also general deterrence, that is, deterring others who might be tempted to behave in a similar fashion.
Section 482A of the LG Act provides for a range of actions, the most serious of which include the power to suspend a councillor from civic office for a period of up to 6 months, and the power to order disqualification from holding civic office for up to 5 years. It was common ground that the present proceedings are not "civil penalty" proceedings as defined in s 4 of the NCAT Act (and see Meineke v Acting Chief Executive, Office of Local Government [2016] NSWCATOD 135 at [8]). The Tribunal agrees with the approach adopted in Neville and Campbell, which is that these proceedings are disciplinary and protective, analogous to professional disciplinary proceedings. As such, an order made under s 482A of the LG Act may have a punitive effect, but punishment is not its purpose, as explained by Basten JA in Director-General, Dept of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83], summarised by the Court of Appeal in Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20]: 1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. 3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist.
In Mehajer the Supreme Court held (at [17]) that the difference between punishments involving suspension of a councillor's service and those which do not is of considerable significance. Suspension from civic office involves more than not being able to attend meetings or be otherwise able to contribute to the work of the Council, but also the inability to assist constituents as a Councillor. While Adams J used the language of "punishment", her Honour's reasons confirm that the purpose of the relevant provisions in the LG Act, relevantly in that matter being disclosure of pecuniary interests, and the Tribunal's jurisdiction, is essentially protective.
In Neville, having characterised the Tribunal's jurisdiction as at least in part protective, the Tribunal identified a number of important indirect effects of a disciplinary order: [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: (1)The order reminds other councillors of the public interest in the maintenance of high standards; (2)The order may give emphasis to the unacceptability of the conduct involved; and (3)By speaking to the public at large, the order seeks to maintain confidence in the standard of conduct of local councillors.
In Campbell the Tribunal identified the following general principles: 14. …The general principles relevant to my task, which I apply below, are as follows: (1)The pecuniary interest provisions in the Act impose obligations upon elected Councillors which are designed to avoid conflicts between their personal interests and their public duties. When breach of those provisions is proved, the range of sanctions in s 482 is enlivened. (2)Although the sanctions in s 482(1) have been described as 'punishments' (eg Mehajer at [17]), and the imposition of sanctions involves specific deterrence of the Councillor in question from such conduct in the future, the purpose of the pecuniary interest provisions in the Act, and the nature of the Tribunal's jurisdiction, is essentially protective: by denouncing the conduct and imposing appropriate sanctions under the Act, public confidence in the institutions of local government is (at least) maintained, and general deterrence to others who might be considering similar conduct is provided. (3)Within the hierarchy of pecuniary interest provisions, a breach of s 451 of the Act, which concerns 'Disclosure and presence in meetings', will generally be more serious transgression than a breach of s 449, which concerns 'Returns disclosing interests of councillors'. This is because of the 'direct connexion between the [undisclosed] interest and the matter [before the Council]': Mehajer at [12]; (4)'it is important to bear in mind the distinction between those penalties that do not involve preventing a councillor from carrying out his or her civic duties on the one hand and those that do. This is an important distinction: amongst other considerations, the imposition of the latter involves, of necessity, depriving the councillor's constituents of the input into the deliberations of the Council, for which he or she was elected.' Mehajer at [11]. (5)Motivation for the contravention is a key matter, for example, was the misconduct motivated by an interest in personal financial gain: Office of Local Government v Petty [2015] NSWCATOD 46 at [67] (6)An 'element of deliberate concealment or deceit' may make suspension necessary: Mehajer at [23]. (7)An apology or acknowledgement of fault may show remorse and insight into the contravention; their absence may more strongly indicate that specific deterrence is required; (8)Also relevant are whether the contravention was or should have been obvious to the Councillor in question, and any steps the Councillor took to avoid contravention of the pecuniary provisions of the Act.
The Tribunal accepts the statements of general principle in both Campbell and Neville as the approach to be adopted in the present proceeding.
It was common ground that previous decisions of the Tribunal and its predecessor, the Local Government Pecuniary Interest and Disciplinary Tribunal, while not binding, provide guidance as to the circumstances in which the discretion conferred by s 482A to impose a sanction should be exercised, and if so, what sanction or sanctions are appropriate. The decisions to which the parties referred relate to matters before the Tribunal on appeal from disciplinary action by the Deputy Secretary, and matters, including this proceeding, where there has been a referral to the Tribunal by the Deputy Secretary. The substantive matters at issue in those decisions relate to a variety of conduct engaged in by local government councillors, including matters where the councillor had been found to have breached pecuniary interest disclosure provisions of the LG Act, and others relating to non-pecuniary conflicts of interest. The actions taken in those proceedings range from a reprimand, to suspension from civic office, suspension of remuneration, to disqualification from holding civic office. While those decisions provide guidance, each turns on its own facts and circumstances.
Clr Byrne raised two issues which he contended are relevant to the consideration of whether any action should be taken, and if so, what action is appropriate. Clr Byrne submitted that the common elements in the different contraventions as found in Byrne No 1 need to be taken into account when determining penalties as a single course of conduct, so that Clr Byrne is not penalised twice for the same conduct, and that the totality principle applies so as to ensure that the combined penalties are not disproportionate to the unlawfulness of the underlying conduct.

[10]

Whether single course of conduct

Clr Byrne submits that there is an interrelationship between the legal and factual elements of the six allegations, and that once properly grouped, there is one allegation that needs to be dealt with. All the allegations and resultant findings come from allegations that refer to the same or interrelated conduct, being the attempt by Clr Byrne to have the councillors withdraw their comments against him.
As summarised above at [38], the Deputy Secretary disagrees, and submits that there are three aspects of Clr Byrne's conduct each of which requires action, namely that in issue in Allegations 1 and 4; Allegations 2, 3 and 5; and Allegation 6.
In CFMEU v Cahill Middleton and Gordon JJ explained (at [39]) that the "course of conduct" principle is a concept that arises in the criminal context generally, relevant to the proper exercise of the sentencing discretion, which "recognises that where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, care must be taken to ensure that the offender is not punished twice for what is essentially the same criminality". At [42] their Honours acknowledged that a court is not compelled to use the principle.
At [51] in Byrne No 1 I described the allegations against Clr Byrne in the following terms: 51. …As was the case in Mattila, here the allegations arise out of a related course of conduct, but are each separate descriptions of conduct constituting the separate allegations relied on by the applicant. The allegations are based on a similar factual matrix, however each has distinct legal elements and refers to separate aspects of the Code of Conduct. There are two types of misconduct separately alleged, being that Clr Byrne failed to comply with applicable requirements of the Code of Conduct, which is misconduct as defined in s 440F(1)(b) of the LG Act, and that he engaged in misconduct as defined under s 440F(1)(d) of the LG Act by committing an act of disorder at a Council meeting.
The conduct the subject of the findings of misconduct in Byrne No 1 was related, stemming from Clr Byrne's response to the Facebook posts made after the Council meeting of 28 August 2018. That conduct occurred over two meetings of the Council, and as identified at [51] in Byrne No 1, constituted two different forms of "misconduct" as defined under s 440F of the LG Act.
It was common ground, and the Tribunal agrees, that care needs to be taken to ensure that Clr Byrne is not punished twice for the same conduct. Whether or not the single course of conduct principle applies in proceedings which are not criminal proceedings, the Tribunal is of the view that consideration of the nature of, and the interrelationship between, the elements of the misconduct as found assists in ensuring that Clr Byrne is not punished twice for the same conduct.
Applying that approach, there are two aspects of the conduct relevant to the consideration of whether to take action under s 482A, and if so, what that action should be. The first is Clr Byrne's conduct at the meeting of 26 March 2019 and 9 April 2019 in proposing the Byrne Motion, participating in debate, and voting in favour of that motion; continued in his conduct at the meeting on 30 April 2019 in putting the motion that the Rescission Motion be refused and participating in debate and voting on that motion; and in the conduct the subject of Allegation 4. That aspect goes to Clr Byrne's use of the power conferred on him as councillor and mayor to move motions at Council meetings, to rule on procedural matters, and to participate in the discussion and voting on matters before the Council, in circumstances where he had a significant non-pecuniary conflict of interest in relation to the matters before the Council. The second aspect concerns Clr Byrne's conduct at the meeting on 26 March 2019, in making the specific allegations as to the conduct of Clrs Hesse and Lockie, and making personal reflections on those councillors.

[11]

Whether totality principle applies

The parties agree that the principle of totality is relevant. That principle, a principle of sentencing in criminal proceedings, is summarised in Mill v The Queen (1988) 166 CLR 59 at 63 as being to require the sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed, to review the aggregate sentence and consider whether the aggregate is just and appropriate.
The principle has been recognised as relevant in disciplinary proceedings under the LG Act, the Tribunal in Office of Local Government v Pauling [2014] NSWCATAD 121 (Pauling) noting: 31. …The Office of Local Government readily accepted that there was a very significant overlap between the two breaches and an approach similar to the principle of totality in the Criminal Law would be justified in a case such as this. In essence this is a principle that requires a consideration of multiple offences so that the totality of the behaviour is considered and then an appropriate penalty is then imposed for all of the offences. The total penalty imposed must be just and appropriate and must avoid a mechanical or arithmetical approach where imposing separate sentences would result in an unjust or crushing penalty. Those considerations derived from Criminal Law, in a general sense, are appropriate to consider in civil disciplinary proceedings such as the present. In this case there is a very significant overlap in the conduct constituting both breaches.
In Pauling the Tribunal had found that the councillor had been present at two meetings of Council and had participated in consideration and voting on a matter in which he had a pecuniary interest. In the present matter the breaches of the Code of Conduct requirements for disclosure and management of a significant non-pecuniary conflict of interest occurred at two meetings of the Council. What is relevant about Clr Byrne's repeated failure to disclose and properly manage that interest is both the passage of time between the meetings, and the fact that at the resumed meeting on 9 April and the second meeting on 30 April 2019 Clrs Lockie and Hesse declared that they had a significant non-pecuniary conflict of interest and absented themselves from the relevant part of the meeting. Clr Byrne's failure to do so is relevant to the determination of the seriousness of the misconduct.

[12]

Seriousness of the conduct

The Deputy Secretary submits that the misconduct is serious. Clr Byrne submits that it is at the lower end of the scale of seriousness, having regard to the fact that Clr Byrne's interest was not hidden, and that he took advice from Council officers during the meeting.
In considering the seriousness of the misconduct, an appropriate starting point is that identified in Meineke v Acting Chief Executive, Office of Local Government (No 2) [2017] NSWCATOD 14 (Meineke No 2) at [10], that the misconduct provisions of the LG Act are an important part of preserving the integrity, in fact and reputation, of the important institution of local government, and councillors have an obligation to familiarise themselves with the requirements of the Code of Conduct and to comply with it. The provisions of the Code of Conduct for disclosure and management of conflicts of interest are important measures for preserving the integrity and transparency of the management of Council affairs, and upholding community confidence in the probity of Council decision-making. The provisions regulating the behaviour of councillors at meetings, and for appropriate procedures to manage complaints about other councillors, assist in promoting the proper and effective management of Council business, and public confidence in that process.
Clr Byrne failed to comply with his obligations in both respects. On two occasions he failed to declare and properly manage a significant non-pecuniary conflict of interest, and played an active role in moving and voting on motions in the exercise of his public functions. He made allegations in a public Council meeting against two councillors that they had engaged in conduct likely to bring them, and the Council, into disrepute.
While that misconduct is serious, it is relevant that unlike the situation in Campbell, Toma and Smith, Clr Byrne did not attempt to conceal his interest when moving the Byrne Motion on 26 March 2019. The transcript of that meeting (see [69] in Byrne No 1) records that Clr Byrne stated to the meeting that he had issued a letter to Clrs Hesse and Lockie seeking a withdrawal and apology for the social media posts, which he considered had made clear imputations about him being corrupt. In contrast, in Toma the respondent councillor had concealed the fact that he had used others' emails without permission, conduct found to have been unethical and improper. Smith concerned failure to disclose and manage a significant non-pecuniary conflict of interest, arising out of an employment relationship with a corporation seeking development consent. In that matter, as was also the case in Campbell, the councillor had voted at a Council meeting, in the latter case in breach of the pecuniary interest provisions of the LG Act.
Clr Byrne has accepted that he made a mistake, and apologised for his actions, taking responsibility for his conduct. That is a factor in his favour, as it was in Toma, and Smith. He regrets his conduct in alleging that Clrs Lockie and Hesse had engaged in conduct that brought them into disrepute and states that he will in future direct complaints about other councillors' conduct through the proper processes. He has explained that he misunderstood the meaning of non-pecuniary interest, and that until the decision in Byrne No 1 understood that defending his public reputation involved the expression of a personal political view, and he now understands that his personal reputation is a private interest.
By way of contrast, in Shelley the respondent councillor had made allegations at a Council meeting and on Facebook that certain named councillors had breached the Code of Conduct by voting at a Council meeting when they had an undeclared significant pecuniary conflict of interest. The Tribunal found that that was a breach of cl 3.1(c) of the Code of Conduct, and in determining the action to be taken took into account that the councillor had expressed no remorse whatsoever for his conduct.
The Tribunal in Shelley took into account that the councillor that had shown his proposed response to questions to the General Manager: at [93] in Shelley, the Tribunal held that while that did not excuse the councillor's conduct, it did demonstrate that he was aware of a potential issue and sought some advice about it and how to avoid issues which might arise. In contrast, the fact that in Campbell the councillor had not sought advice from Council officers or anyone else, despite being aware of the circumstances which gave rise to a potential contravention of the pecuniary interest provisions were she to vote, was held to demonstrate a reckless disregard for her obligations.
Clr Byrne's evidence at [16] in his written statement of 18 June 2021 was that he had spoken to Council officials before the March 2019 meeting to clarify that he was permitted to move the motion calling on Councillors to apologise and withdraw any defamatory comments, and was told he could, and that it was within the remit of elected Councillors to request that defamatory comments be withdrawn or apologised for. That evidence was not challenged. The transcript of the Council meeting on 26 March 2019 confirms (ex A1, p A75) that during the meeting Clr Byrne consulted the Council's Governance Manager, however the advice as recorded in the transcript related to the provisions of the Code of Meeting Practice for the Council to require a councillor to withdraw a comment that could fall within an act of disorder. That was not, as Clr Byrne acknowledged at [17] of his written statement, a request for advice as to whether his public reputation was a private interest that needed to be disclosed and appropriately managed. Those actions demonstrate some reflection as to the appropriateness of his conduct at the time.
The Tribunal accepts that at the time of the Council meetings in March and April 2019 Clr Byrne misunderstood the meaning of a non-pecuniary interest as defined in the Code of Conduct, and that since the decision in Byrne No 1 he accepts that his personal reputation is a private interest, and that matters affecting his reputation need to be appropriately managed when carrying out his official functions. The Tribunal accepts his evidence that he now understands that he should not have moved the Byrne Motion and that if that motion had been moved by someone else he should have declared that he had a non-pecuniary conflict of interest and removed himself from the meeting while it was being addressed. The Tribunal is of the view, however, that Clr Byrne should have been alerted to the fact that there was an issue with his continued involvement in the conduct of the meeting by the time of the Council meeting of 30 April 2019, when Clrs Hesse and Lockie declared a non-pecuniary conflict of interest and left the meeting while the Rescission Motion was discussed and voted on.

[13]

Clr Byrne

Clr Byrne is an experienced Councillor, having first been elected to the then Leichhardt Council in 2008, and having served as Mayor of that Council for two terms and as Mayor of Inner West Council since 2017. As was the case in Shelley, his failure to comply with his obligations is deserving of a greater degree of censure than might be appropriate for similar conduct by a less experienced councillor.
Clr Byrne has not previously been subject to Tribunal proceedings or findings. He has, however, been found to have breached provisions of the Code of Conduct, including cl 3.1(a), the provision found to have been breached in relation to Allegation 2. The Code of Conduct Complaint Investigation Report dated 22 November 2019 (ex A3), tabled at the Council meeting of 10 March 2020, found that social media posts made by Clr Byrne concerning the apology issued to him by Clr Lockie were in breach of the Council's Social Media Policy for Councillors, in that he had made comments about another councillor which a reasonable person would consider humiliating, including aligning motives of personal advancement to her and accusing her of being unprofessional, disrespectful and having bad manners. The findings of the report included a finding that that was conduct likely to bring Council and a council officer into disrepute, a breach of cl 3.1(a) of the Code of Conduct; that Clr Byrne had failed to appropriately manage comments made to his posts, contrary to his obligations under the Social Media Policy, a breach of cl 3.1(b) of the Code of Conduct; and that he had not applied a reasonable degree of care and diligence in ensuring his comments on social media complied with his obligations under the Code of Conduct and Social Media Policy, or in ensuring the removal of material from his social media accounts which did not comply, in both instances a breach of cl 3.2 of the Code of Conduct.
The Minutes record that Clrs Byrne and Lockie absented themselves from the meeting on 10 March 2020. The Council voted to publish the findings and recommendations of the report in the meeting Minutes. The recommendations noted that the Council's options were limited to a censure, or reporting of the conduct to the Office of Local Government; and that the conduct did not rise to the level of seriousness to warrant that action.
Those findings concern breaches by Clr Byrne of the Code of Conduct, found to have occurred after the conduct the subject of these proceedings, and made public before the referral of this matter to the Tribunal by the Deputy Secretary. The findings demonstrate a lack of awareness of or compliance with the requirements of the Code of Conduct, in particular cl 3.1(a) and (b) which provide that a Councillor must not conduct themselves in a manner that is likely to bring the council or other council officials into disrepute, or is contrary to statutory requirements or Council policies, of a similar kind to the misconduct found in these proceedings. While the findings of the Code of Conduct Complaint Investigation did not result in disciplinary action, they are relevant to consideration of the likelihood of similar misconduct in future, and whether action should be taken now in order to deter such misconduct (LG Act, s 482A(3)).
The Tribunal places significant weight on the statements by Clr Scott, Dr Glen, and Hon Mary Gaudron QC as to the good character of Clr Byrne. Each states that they are aware of the findings in Byrne No 1, and Dr Glen and Hon Mary Gaudron that they have read the decision. All have known Clr Byrne for many years, and all attest to his honesty and integrity, and longstanding commitment to the community and to representing community interests. The Hon Mary Gaudron QC states that she has always found Clr Byrne to be open and honest, and that his actions which led to the Tribunal findings were done openly and without any attempt to conceal his involvement. Clr Scott states that she has always found Clr Byrne to be a hard-working, dedicated and passionate advocate for his community and his council, that the incident is out of character for Clr Byrne, and that she believes he has learnt from the experience. Dr Glen states that he has always found Clr Byrne to be open and honest, and never duplicitous; and that he is not perfect but is always honest, selfless and well intended.

[14]

Whether action should be taken

The need to enforce the provisions of the Code of Conduct, and to reinforce the need for transparency in the conduct of Council business, is central to consideration of whether Clr Byrne's behaviour warrants action under s 482A of the LG Act. The obligation on a councillor to identify, declare and manage any conflict of interest in accordance with the requirements of the LG Act and the Code of Conduct is fundamental to the proper administration of local government and public confidence in that proper administration. The obligation on councillors not to engage in conduct likely to bring the council or other councillors into disrepute, or make allegations of breaches of the Code of Conduct against other councillors other than by making a complaint in accordance with the Procedures Code, is important for the proper functioning of Council decision making processes, and for the fair and independent determination of complaints.
Clr Byrne's actions in the Council meetings of 26 March 2019, 9 April 2019 and 30 April 2019, together with what he said of Clrs Hesse and Lockie, fell well short of what is required for the proper administration of local government, and for the maintenance of public confidence in its processes. While Clr Byrne has explained that his failure to take the steps required of him to manage his significant non-pecuniary conflict of interest appropriately was due to a misunderstanding of what the Code of Conduct required, and that the only briefing session at Council on the Code of Conduct was not detailed and did not explain what constituted a significant non-pecuniary conflict of interest, councillors have an obligation to familiarise themselves with the requirements of the Code of Conduct and to comply with it: see Meineke No 2 at [10(2)]. Clr Byrne's failure to do so, and his conduct in making allegations against Clrs Hesse and Lockie at the meeting on 26 March 2019, require a response in the form of action under s 482A(2) of the LG Act.

[15]

What action is appropriate

In considering what action is appropriate, an issue as to the interpretation of s 482A(2) arises. Section 482A(2) uses the disjunctive term "or" between each of the actions stated in paras (a)-(d), which would suggest that the Tribunal can take only one of the actions specified. In Mehajer and Campbell the Supreme Court and the Tribunal took multiple actions under the former s 482(1) of the LG Act, which concerned actions that could be taken for complaints concerning pecuniary interest matters. That section was drafted in similar way to s 482A, with the word "or" between each of the different types of action. In each case that action was a reprimand, and suspension of remuneration for three months. At the request of the Tribunal the parties provided brief written submissions after the hearing on this issue.
The parties submit that the use of the word "or" does not limit the Tribunal to choosing one action to the exclusion of others. The chapeau to s 482A(2) does not suggest that the Tribunal must choose one action only, and on a purposive approach, the Tribunal would read the section to provide the capacity to order a range of sanctions to any particular person. That such a purposive approach is open, so that the word "or" might mean "and", is supported by authorities including Pileggi v Australian Sports Drug Agency [2004] FCA 955; (2004) 138 FCR 107 (Pileggi). The parties refer to the Second Reading Speech on the introduction of the Local Government Amendment (Discipline) Bill 2004 which introduced s 482A, in which the Parliamentary Secretary referred to one of the objects of the reform being to give the Tribunal "greater flexibility to ensure that local councillors are appropriately and adequately sanctioned for irresponsible behaviour". The parties submit that an interpretation of s 482A that permitted the Tribunal to take multiple actions would be consistent with that purpose of giving flexibility.
The Tribunal is not persuaded that it is appropriate to read s 482A(2) in that way. As Pearce & Geddes Statutory Interpretation in Australia (9th ed, 2019) notes at [2.48], the starting point in any consideration of the effect of "and" and "or" is that they are to be given their usual meaning: Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110; (2018) 162 ALD 427 at [27], [36]. There are authorities, discussed by Pearce and Geddes at [2.50], in which a court has adopted a conjunctive interpretation of "or", including Pileggi. In that case, the court held that a legislative requirement that the agency could ask a competitor for a sample "orally or by written notice" was met by a request for a sample which had been made partly in oral form and partly by written notice, as objectively speaking the competitor had been informed of a request to provide a sample for a drug test at a specified time and place. That is distinguishable from a situation such as this where the legislation provides a list of possible actions as alternatives.
The amendments to the LG Act introduced by the Local Government Amendment (Discipline) Bill 2004 expanded the range of matters which the renamed Pecuniary Interest and Disciplinary Tribunal could consider to include misbehaviour other than breach of the pecuniary interest provisions, and expanded the range of disciplinary actions available, from those available to the former Local Government Pecuniary Interest Tribunal. The flexibility to which the Parliamentary Secretary referred in the Second Reading Speech related to the addition of a provision enabling the tribunal to suspend a councillor's right to be paid a fee or remuneration without suspending the councillor from civic office.
The parties identified a decision in which the Tribunal ordered a reprimand and suspension of remuneration for three months: Office of Local Government v Petty [2015] NSWCATOD 46. In Neville the Tribunal reprimanded the councillor and suspended his remuneration for a period of two months. There was no analysis in either of those matters, or in Mehajer or Campbell, as to whether the statute should be construed so that the use of the disjunctive word "or" did not limit the Tribunal to choosing one action. In the absence of considered authority, the Tribunal is of the view that the word "or" in s 482A(2) should be read in accordance with its ordinary, disjunctive meaning.
It was common ground that general deterrence, that is, deterring others who might be tempted to behave in a similar way in similar situations, and specific deterrence, being the avoidance of a repeat of the misconduct found to have occurred, are relevant. The importance of compliance with the provisions of the Code of Conduct, and reinforcing the need for transparency in the conduct of Council business, and the consequent requirement for councillors to ensure they understand the requirements of the Code of Conduct, are factors relevant to general deterrence. That is reinforced in circumstances where Clr Byrne is an experienced councillor, and as Mayor of the Council occupies a position of leadership and responsibility, a role recognised in s 226(a) of the LG Act as "the leader of the council and a leader in the local community".
In terms of specific deterrence, the Tribunal is satisfied that there was no dishonesty or deception, and that Clr Byrne was not motivated by personal financial gain, but rather was acting in what he saw as a situation where his personal reputation, and the reputation of the Council and other councillors, had been impugned. Clr Byrne has demonstrated a willingness to accept the findings of misconduct, and has expressed regret, and a desire to ensure that in future he complies with the requirements of the Code of Conduct and the Procedures. His referees attest to his good character and remorse. The Tribunal is satisfied that it is unlikely that Clr Byrne would engage in similar misconduct again.
In the Tribunal's view, having regard to the seriousness of the misconduct, and the need for general deterrence, something more than counselling or a reprimand is required. However, the Tribunal does not consider that a period of suspension is appropriate, or is required to provide a clear message either to Clr Byrne, or to councillors generally, that his misconduct was unacceptable. A period of suspension would not preclude Clr Byrne from nominating for re-election as councillor if otherwise qualified to hold civic office: LG Act, ss 274, 277. If re-elected, there appears to be no barrier to his being eligible to be elected as mayor: LG Act, s 227. However, to suspend Clr Byrne from civic office for a period would not only sanction him, but would deprive his constituents of the benefit of his assistance as councillor, and representation in Council administration. There was no deliberate concealment or deceit involved, and Clr Byrne has accepted that he was wrong and will ensure that there is no repeat of the misconduct. In those circumstances, a period of suspension of the right to be paid a fee or other remuneration would be appropriate.

Deputy Secretary, Local Government Planning and Policy v Byrne

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