Solicitors:
Office of Local Government (Applicant)
File Number(s): 1520029
[2]
Introduction
By decision dated 13 November and reported as Office of Local Government v Councillor Campbell of Murray Shire Council [2015] NSWCATOD 129, ('the contravention decision") I concluded that Councillor Campbell had breached s 451 of the Local Government Act 1993 (the Act) and that I would proceed to consider the question of penalty.
I then made directions as to the future conduct of the matter, as a result of which both parties have provided submissions, (the Applicant, the Office of Local Government also relied upon its earlier submissions on penalty), and Councillor Campbell has provided further evidence. I have considered these. I note that neither party has submitted that a further hearing is required. It is both appropriate and expeditious to consider the issue of penalty on the papers and I now proceed to do so.
I first note that both parties have identified and are agreed upon the correction of two typographical errors in the contravention decision, namely:
1. At paragraph [7] of the earlier decision it is said that 'This matter concerns an irregularly shaped 508 m2 block of largely undeveloped land in Moama, being Lot 1/DP 851678 (the land).' The reference to '508m2 is a typographical error, the correct figure is '5807 m2';
2. At paragraph [8] of the earlier decision it is said that 'The relationship between the land and the top of the bank is important. In essence this is because, as the law stood when Councillor Campbell made a development application in 2013, construction of a new residence could not be approved by the Council if the residence was within 100 metres of the top of the bank.' The reference to 2013 is a typographical error, the correct year is 2012, as is clear from the context of the decision.
I have directed the Tribunal's Registrar to correct those obvious typographical errors pursuant to s 63 of the Civil and Administrative Tribunal Act.
Although I refer here to certain passages of the contravention decision, the two decisions should be read together.
Powers and general principles
Section 482 of the Act provides:
(1) The Civil and Administrative Tribunal may, if it finds a complaint against a councillor is proved:
(a) counsel the councillor, or
(b) reprimand the councillor, or
(c) suspend the councillor from civic office for a period not exceeding 6 months, or
(d) disqualify the councillor from holding civic office for a period not exceeding 5 years, or
(e) 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 6 months (without suspending the councillor from civic office for that period).
I am assisted in my task by a number of decisions of this Tribunal, or of its predecessor in this field, namely the Local Government Pecuniary Interest and Disciplinary Tribunal, and by an authoritative decision by Adams J of the NSW Supreme Court in Mehajer v Chief Executive of the Office of Local Government [2014] NSWSC 1804. 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.
Application to re-open?
The previous hearing was limited to the question of contravention. That, as the parties were advised, was to avoid the situation considered by the Court of Appeal in King v Health Care Complaints Commission [2011] NSWCA 353, namely, where there was a breach of the relevant Tribunal's duty of procedural fairness by ordering a disciplinary sanction (in that case deregistration) without giving the affected party an opportunity to adduce evidence and make submissions on the appropriate orders consequential on the Tribunal's finding of a disciplinary breach. (Similarly, in Lucire v Health Care Complaints Commission [2011] NSWCA 99 at [65] Basten JA said that the practitioner: "... should not have been required to address submissions to the Tribunal on the appropriate orders until the Tribunal had determined whether and in what respects her conduct constituted professional misconduct." )
However, it was also made clear to the parties that the previous hearing was the hearing on the question of contravention. In view of the requirement to 'facilitate the just, quick and cheap resolution of the real issues in the proceedings' (Civil And Administrative Tribunal Act, s 36) there needs to be some good reason to now permit re-opening of the decided issues. None has been shown here.
Although the Respondent does not ask in terms to re-open the contravention hearing, her submissions do seem to take issue with the previous decision and its conclusions and perhaps seek to re-argue a number of contentions or to introduce new arguments and evidence on the question of contravention. I decline to permit this.
Nor am I prepared to receive now, as evidence relevant to contravention, pieces of evidence which, as indicated by their date, were in existence at the time of the hearing, where it is not suggested that this material has been recently recovered or obtained by the Respondent.
As I also said in the previous decision:
1. [6] For reasons I gave during the hearing, I declined to receive previously unfiled evidence (noting that directions had been made as to the filing and serving of evidence well prior to the hearing) as to what the Council might have done in relation to other properties owned by other Councillors on other occasions.
I am not prepared to allow evidence of that sort to be tendered now. Such evidence is also irrelevant to the question of penalty.
Finally, I am not prepared to let the Respondent resile from concessions made by her representative at the hearing that:
1. Murray Local Environmental Plan 2011 (the LEP) applied to the relevant land (In any event Clause 4.2A(4) of the LEP was evidently inapplicable); and
2. There was no reliance on s 457 of the Act, that is, the Respondent did not contend that she 'did not know and could not reasonably be expected to have known that the matter under consideration at the meeting was a matter in which … she had a pecuniary interest.' (At [30] of the previous decision I wrote " Mr Hill, for Councillor Campbell , expressly did not rely upon s 457. In view of the letter from the Council of 29 November 2013, it would not be possible to make out that exception.")
Consideration
The essence of the contravention of s 451, as found in the previous decision (the reasons for which I do not repeat) was as follows:
1. The respondent lodged a DA over her own land which, if granted, would have resulted in an appreciable financial gain in the value of that property of about $300,000;
2. The Respondent was told in direct terms by the Council no later than 29 November 2013 that, because the dwelling proposed in the DA was more than 60 metres but less than 100 metres from the top of the river bank, the terms of the LEP precluded the grant of the DA, but also that the Council was shortly to consider amendments to the LEP on that topic, and the Council was willing to consider deferral of its assessment of the DA pending consideration of the issue of LEP amendment;
3. On 10 December 2013, the Respondent was present at a Council meeting and voted in favour of an amendment to the LEP recommending introduction of a new 60 metre limit in the LEP (which new limit the DA would not have contravened), thereby being present and voting on a matter giving rise to a reasonable likelihood or expectation of appreciable financial gain, and thus contravening s 451.
Thus, no later than 29 November 2013, the Respondent was aware of circumstances giving rise a potential contravention of s 451 were she to be present and vote on the motion to amend the LEP. (Again, I note that the Respondent expressly disavowed reliance upon s 457 of the Act.) She did not then seek advice from Council officers, nor, on the evidence, did she seek advice from anyone else, as to whether she should be present and vote, or instead absent herself.
Contrary to the Respondent's submissions, there is no basis in the evidence for finding that 'every councillor' had an interest like that of the Respondent in voting on that matter. That is a theoretical issue which need not be considered.
As the respondent asserts that she 'acted honestly at all times', and as the Applicant:
1. expressly declined to seek to question the Respondent on this question, or
2. positively to assert the Respondent acted dishonesty or deceitfully,
I am not prepared to find that the Respondent acted deceitfully or dishonestly, nor that she knowingly sought to obtain a financial gain, nor that she engaged in deliberate concealment of any relevant matter.
I do find that, in the circumstances as found in the contravention decision, and noted in summary above, the Respondent showed a reckless disregard for her obligations under s 451.
Finally, I note that, even now, the Respondent does not acknowledge that she should have acted differently. That demonstrates a lack of contrition and a lack of insight.
In the result some sanction is needed to denounce the contravening conduct, to deter the Respondent specifically and other Councillors more generally, and to maintain public confidence. The sanction must however be proportionate to the contravening conduct. The Respondent's conduct is not such as should deny her constituents the benefit of her services. For those reasons neither disqualification nor suspension is appropriate.
For all of these reasons, the Tribunal's decision is that, pursuant to s 482 of the Local Government Act, Councillor Genevieve Campbell of Murray Shire Council is reprimanded, and her right to be paid any fee or other remuneration to which she would otherwise be entitled as the holder of civic office is suspended for the period of three months dating from, and including, the date of the next payment due (without suspending her from civic office for that period).
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
Registrar
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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Decision last updated: 21 January 2016
Parties
Applicant/Plaintiff:
Office of Local Government
Respondent/Defendant:
Councillor Genevieve Campbell of Murray Shire Council