Re referral by Deputy Secretary, Local Government, under s 438HA of the Local Government Act 1993, concerning Mr Thaler, a Councillor [2025] NSWCATOD 102; (7 August 2025)

Jali Local Aboriginal Land Council v Anderson [2025] NSWCATOD 57

John Fairfax & Sons Pty Ltd v Police Tribunal (1986) 5 NSWLR 465

John Fairfax Publications Pty Ltd v Ryde Local Council (2005) 62 NSWLR 512; [2005] NSWCA 101

Office of the Local Government v Neville [2018] NSWCATOD 31

Pearce v Queen (1998) 194 CLR 610; [1998] HCA 57

Re Referral by Executive Director, Local Government under s 440J and 440N of the Local Government Act 1993, concerning Mr Robinson, a former Councillor [2022] NSWCATOD 167

Re referral by Executive Director, Local Government, under s 440J of the Local Government Act 1993, concerning Mr Hindi, a former Councillor v Hindi [2022] NSWCATOD 152

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63

Thaler v Secretary, Department of Planning, Housing and Infrastructure [2025] NSWCATOD 88

Department of Planning, Housing and Infrastructure (Applicant)

1. On 23 June 2025, the Deputy Secretary, Local Government (the Secretary) referred to the Tribunal, pursuant to section 438HA(9) of the Local Government Act 1993 (NSW) (the Act), a Departmental Report (the Report) concerning:

(1) the alleged failure of Mr Andrew Thaler (the Councillor) to take action, as required by a performance improvement order issued on 6 February 2025 and made under s 438A of the Act (the PIO); as constituted by

(2) specified conduct and statements;

(3) alleged contraventions of the Snowy Monaro Regional Council Code of Conduct (the Code); and

(4) alleged breaches of an undertaking entered into pursuant to the PIO (the Undertaking).

1. Pursuant to s 470A of the Act, the Tribunal may decide to conduct proceedings into the matter, after considering the Report.
2. After reviewing the Report and the submissions of the Secretary and the Councillor, the Tribunal has decided to conduct proceedings into the matter (the referred proceedings).
3. In summary, the Tribunal has found as follows:

(1) That, contrary to the submissions by the Councillor and despite some commonality in the conduct particularised in the Report and proposed referred proceedings, on the one hand, and the recently determined matter of Thaler v Secretary, Department of Planning, Housing and Infrastructure [2025] NSWCATOD 88 (Thaler (No 1)), on the other hand, the matters concern distinct issues and there is no "double jeopardy" or "extra-curial punishment" or the like, in the Tribunal conducting the referred proceedings.

(2) Further, the Secretary, in the proposed referred proceedings, raises arguable allegations of failure to take action under the PIO and breaches of the Code and the Undertaking, which warrant consideration by the Tribunal.

(3) To the extent the Councillor has raised legal or factual defences in his submissions, these should properly be the subject of full argument and evidence, which may be dealt with in the usual course of proceedings in the Tribunal; and may be raised as part of the referred proceedings.

Procedural fairness, whether a hearing is necessary and written statement of reasons

1. In Deputy Secretary, Local Government, Planning and Policy v Garrard [2021] NSWCATOD 75 (Garrard) at [2] the Tribunal described the process of considering whether to conduct proceedings into a referred matter, as a "preliminary decision"; and in Re referral by Executive Director, Local Government, under s 440J of the Local Government Act 1993, concerning Mr Hindi, a former Councillor v Hindi [2022] NSWCATOD 152 (Hindi) at [4] and in Re Referral by Executive Director, Local Government under s 440J and 440N of the Local Government Act 1993, concerning Mr Robinson, a former Councillor [2022] NSWCATOD 167 (Robinson) at [4], it was described as a "preliminary issue". The use of the moniker "preliminary" is apt: unless and until the Tribunal decides to conduct proceedings into the referred matter, there are no extant proceedings in the Tribunal.
2. In Garrard, Cole DCJ, after a nuanced analysis, determined that in such matters, it is necessary to afford the affected persons procedural fairness. This was because, whilst it was "finely balanced", the better view was that it was not intended that the rules of procedural fairness be excluded in the Tribunal's processes leading up to the decision provided for in s 470A of the Act (at [30]). Her Honour noted at [25]:

"The Tribunal's decision under s 470A of the Act as to whether to conduct proceedings into a referred matter has the potential to affect the rights or interests of the councillor the subject of the matter in that, in the event that the Tribunal decides to conduct proceedings, it will expose the councillor to a procedure which is likely to include a hearing (whereas the Deputy Secretary's decision on the merits is made on the papers) and, in the event that the misconduct is proven, it will expose the councillor to the possibility of the imposition of more serious disciplinary orders."

1. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [26] the High Court (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) said:

"It has long been established that the statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires. It is also clear that the particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case."

1. Ultimately, the particular content of the procedural fairness will depend on the circumstances. With that in mind, and for the following reasons, I have some reservations in accepting that, in all cases, it will be necessary to provide the parties with a hearing or to receive submissions, at this stage of the referral process (and I pause to note, that I do not read the decision of Garrard to be saying anything different):

(1) The referral process under the Act is anterior to the existence of the referred proceedings in the Tribunal. Unless and until a referral is accepted, there is no extant proceeding in the Tribunal.

(2) Any issues as to prejudice or unfairness to the Councillor, may be raised during the course of the referred proceedings, if constituted. This would conceivably include by way of an application for summary dismissal of the proceedings or by application to dismiss aspects of the referred proceedings.

(3) Introducing another step in the referral process (the step of affording procedural fairness) delays the final resolution of the underlying matters (either by refusing to conduct proceedings or in commencing and completing the referred proceedings).

(4) The Act expressly requires the Tribunal to consider a report presented to it under s 438HA (here, the Report); but otherwise, does not expressly state that the Tribunal ought to have regard to any other matters before deciding to conduct proceedings into the matter.

(5) The questions that may be relevant to the consideration of whether a Tribunal should accept the referral, such as whether the Secretary has a reasonably arguable case, whether the alleged misconduct is sufficiently serious to warrant the acceptance of the referral and any prejudice to the Councillor, could be expected to be readily apparent from a reading of the Report.

1. On the other hand, and whilst not the position here, I note the argument for an opportunity to be heard in the event the Tribunal were minded to refuse the referral, has some force:

(1) A written statement of reasons is required under the Act, in the event that the Tribunal decides not to accept the referral (whereas one is not expressly required in the event the Tribunal accepts the referral).

(2) A decision to refuse the referral would mean that there was no further step that could be taken in the Tribunal.

1. Certainly, there may be cases where it would manifestly be of assistance to the Tribunal to receive submissions; as was the case here. It was also the case in Garrard, where it was said at [32]:

"Inviting submissions and holding a brief hearing on the decision to be made under s 470A(1) may conduce to the efficient disposal of the matter."

1. Here, by orders on 24 June 2025 of a differently constituted Tribunal, the parties were indeed afforded an opportunity to provide submissions in relation to whether the Tribunal would accept the referral, including submissions as to whether the Tribunal could dispense with a hearing, as contemplated by s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) and were given a timetable for so doing. I emphasise that, by the foregoing comments, I do not intend to suggest that that was not necessary or appropriate in this case.
2. The parties duly provided their submissions.

1. The Secretary submitted that this matter could be deal with "on the papers". Whilst, the Councillor was opposed to the Tribunal dispensing with a hearing, his submissions were directed to why the Tribunal should not accept the referral and no reasons why a hearing was necessary were provided.
2. To the extent necessary I dispense with a hearing. I say to the extent necessary, as I am not satisfied that a hearing on whether the Tribunal should accept a referral is always required under the Act or the NCAT Act; however, it is not necessary to express a concluded view.
3. As yet, there are no extant proceeding in the Tribunal and whilst the Act refers to a hearing in relation to the conduct of the proceedings (s 470B) there is nothing similar in relation to this anterior aspect of the process, before the proceedings have commenced. I note that s 470B of the Act was the subject of consideration in Robinson, in relation to the "further steps" once the referral had been accepted and the proceedings commenced: at [53] to [58]. I am still concerned with the preliminary issue and not the "further steps".
4. In the event a hearing is the starting position, the factors that were material to my consideration to dispense with a hearing include:

(1) In favour of holding a hearing:

(a) The Objects of the Tribunal include "to ensure that the Tribunal is accountable and has processes that are open and transparent; and to promote public confidence in tribunal decision-making in the State and in the conduct of tribunal members": ss 3(f) and (g) of the NCAT Act.

(b) The importance of open justice: John Fairfax & Sons Pty Ltd v Police Tribunal (1986) 5 NSWLR 465 at 476; John Fairfax Publications Pty Ltd v Ryde Local Council (2005) 62 NSWLR 512; [2005] NSWCA 101 at [60]- [63].

(c) The principles of open justice apply to the Tribunal: Forest v Suzanne [2022] NSWCATAP 188 at [30].

(2) In favour of dispensing with a hearing:

(a) In relation to "proceedings", the starting position is that a hearing is required (unless it falls into one of the specified exceptions) and that hearings are open to the public (unless otherwise ordered): ss 50 and 49 of the NCAT Act. However, this decision concerns a question which arises anterior to the commencement of proceedings. The issues the subject of this decision do not concern an extant proceeding. There is no "proceeding" in the Tribunal, to decide whether or not to accept the referral. There is no proceeding unless and until the Tribunal accepts the referral.

(b) If and when the Tribunal decides to conduct proceedings, the Act expressly provides for the circumstances of when a hearing of the referred proceedings may be dispensed with: s 470B.

(c) By way of contradistinction, the Act does not expressly refer to a hearing in relation to the decision to conduct proceedings. However, I accept that where the rules of procedural fairness required it, this might be implied.

(d) This decision relates to the question to whether the Tribunal should accept the referral; it is not the occasion to test evidence, nor to form concluded views on the submissions.

(e) This is not the occasion to form concluded views in relation to the allegations of misconduct or the defences to the contentions.

(f) The parties provided comprehensive written submissions.

(g) No oral evidence is required; and nor is there any need for cross examination.

(h) This decision will be published and will expose the Tribunal's reasoning and the submissions.

(i) Where, as here, the hearing would likely simply amount to a recitation of the written submissions, there is a public interest in conserving the Tribunal's resources and the costs to the parties.

(j) The guiding principle of the NCAT Act is to facilitate the just, quick and cheap resolution of the real issues in the proceedings before the Tribunal: s 36(6) of the NCAT Act.

(k) No issue was raised as to prejudice, if this decision is undertaken without a hearing; although I note the Councillor's objection to this course.

1. In conclusion, in accordance with s 50 of the NCAT Act, having afforded the parties an opportunity to make submissions and having taken those submissions into account; and further, being satisfied that this is in accordance with the requirements of the NCAT Act, the procedural rules and the Act, I am satisfied that this is an appropriate case in which to dispense with a hearing.

1. In each of Garrard, Hindi and Robinson, the Tribunal provided a written statement of reasons for their decision to conduct proceedings into the matter. This appears to have been done voluntarily, in the sense that in neither case does there appear to have been a request, by a party, for a written statement of reasons, in accordance with s 62 of the NCAT Act. As s 62 applies to "proceedings" and until the Tribunal decides to conduct proceedings, there are no proceedings on foot, the lack of a request for a written statement of reasons is to be expected. On the other hand, were the Tribunal to decide not to conduct proceedings into a referred matter, a written statement of reasons would be required: s 470A(2) of the Act.
2. As the Secretary and the Councillor, here, provided comprehensive submissions on their positions as to whether the Tribunal should accept the referral and, in particular, as the Councillor raised the possibility that the proceedings (should the Tribunal decide to conduct them) would amount to "Double Jeopardy" or "Extra-Curial Punishment", given the recent decision of the Tribunal in Thaler (No 1), the Tribunal has provided this written statement of reasons for its decision to accept the referral and conduct the proceedings. However, by so doing, I do not mean to express a view that this would be necessary in all cases.

"The factors relevant to the question of whether to conduct proceedings under the Act can be formulated by reference to similar threshold requirements, such as the requirement for leave to proceed with litigation, in other legislation (see, for example Rushleigh Services Pty Ltd v Forge Group Limited (In Liquidation) (Receivers and Managers Appointed) [2018] FCA 26, Mr D and Ms P [2020] NSWCA 174 and Clough v Breen [2020] NSWSC 653). In relation to the question of whether to conduct proceedings under the Act, those factors are:

(1) Whether a reasonably arguable (prima facie) case has been established.

(2) Whether the misconduct alleged is more serious than trivial or trifling conduct.

(3) Whether any circumstance exists which would make the conduct of proceedings unfair to the respondent, or contrary to the public interest.

These factors are to be considered in light of the objects of the Act (see s 7(e) of the Act) and the guiding principle of the CAT Act (see s 36(1) of the CAT Act)."

1. I note that in Robinson the President of the Tribunal agreed with and adopted this approach: at [41].
2. Whilst I do not consider this statement was intended to provide an exhaustive set of principles and was not intended to identify mandatory factors that the Tribunal was required to consider, when deciding whether to accept a referral, it certainly provides a very useful guide as to how to approach the statutory task of deciding whether to accept the referral. I, too, agree with it and adopt it.
3. The Secretary's submissions expressly address the abovementioned factors. Whilst not arranged under these headings, the Councillor's submissions can be seen to address these issues too. I therefore proceed on the basis that these principles are apposite.

1. As noted above, the proposed subject matter of the referral concerns the alleged failure of the Councillor to take action under the PIO as constituted by certain conduct and breaches of the Code and the Undertaking.
2. On 20 October 2022, the Council passed a resolution adopting the Code. At the relevant times, the Code applied to the Councillor. The Code includes clauses such as the following:

"3.1 You must not conduct yourself in a manner that:

a) is likely to bring the council or other council officials into disrepute

...

c) is improper or unethical

...

e) causes, comprises or involves intimidation or verbal abuse

...

g) constitutes harassment or bullying behaviour under this code, or is unlawfully discriminatory.

...

3.6 You must not harass or unlawfully discriminate against others, or support others who harass or unlawfully discriminate against others, on the grounds of age, disability, race (including colour, national or ethnic origin or immigrant status), sex, pregnancy, marital or relationship status, family responsibilities or breastfeeding, sexual orientation, gender identity or intersex status or political, religious or other affiliation.

...

3.8 You must not engage in bullying behaviour towards others.

...

3.12 All council officials, including councillors, owe statutory duties under the

Work Health and Safety Act 2011 (WH&S Act). You must comply with

your duties under the WH&S Act and your responsibilities under any policies or procedures adopted by the council to ensure workplace health and safety. Specifically, you must:

a) take reasonable care of your own health and safety

b) take reasonable care that your acts or omissions do not adversely affect the health and safety of other persons

c) comply, so far as you are reasonably able, with any reasonable instruction that is given to ensure compliance with the WH&S Act and any policies or procedures adopted by the council to ensure workplace health and safety

d) cooperate with any reasonable policy or procedure of the council relating to workplace health and safety that has been notified to council staff

e) report accidents, incidents, near misses, to the chief executive officer (CEO) or such other staff member nominated by the CEO, and take part in any incident investigations

f) so far is as reasonably practicable, consult, co-operate and coordinate with all others who have a duty under the WH&S Act in relation to the same matter.

...

7.9 You must not engage in any of the following inappropriate interactions:

...

f) councillors and administrators being overbearing or threatening to council staff

g) council staff being overbearing or threatening to councillors or administrators

...

h) councillors and administrators making personal attacks on council staff or engaging in conduct towards staff that would be contrary to the general conduct provisions in Part 3 of this code in public forums including social media

i) councillors and administrators directing or pressuring council staff in the performance of their work, or recommendations they should make"

1. The PIO required that the Council and its councillors take certain actions, including, relevantly:

"1. All Councillors enter into an undertaking in the form specified in Schedule 3, to be provided to me within 7 days of the service of the Order. I require all Councillors to comply with that undertaking,

2. Councillors refrain from making or implying allegations of wrongdoing against any Council official, unless such allegations are made through the established processes for receiving such matters,

...

5. Councillors refrain from making statements, orally or in writing, that a reasonable person may consider offensive, abusive, harassing, threatening or disrespectful, about or to other councillors or Council staff members; and

...

8. Councillors are to conduct themselves in accordance with the Council's Code of Conduct."

1. The Councillor signed the Undertaking on 10 February 2025, and it relevantly provides as follows:

"I, Councillor Andrew Thaler of Snowy Monaro Regional Council (Council), do hereby give the following undertaking:

I will:

a) refrain from making statements, orally or in writing, that a reasonable person may consider offensive, abusive, harassing, threatening or disrespectful, about or to other councillors or Council staff members; and

b) refrain from making statements that allege breaches of the Model Code of Conduct from Local Councils in NSW or Council's adopted Code of Conduct by other councillors or Council staff, unless in accordance with the Procedures for the Administration of the Model Code of Conduct for Local Councils in NSW; and

c) refrain from publicly disclosing information relating to code of conduct complaints, including at Council, Committee or other meetings, in any other forum, or on any social media platform; and

d) refrain from disclosing or causing the release of confidential Council information to any public forum, including on any social media platform."

1. Grounds 1 to 6B of the proposed referred proceedings refer to conduct that was the subject of the recent decision of Thaler (No 1). The substance of the conduct, which concerned an audio and visual recording published by the Councillor to the social media platform YouTube on 5 March 2025 (the 5 March 2025 video) and the social media platform Facebook on 6 March 2025 (the 6 March 2025 video) is identified in that decision and I do not repeat it here.
2. The Secretary contends with respect to those grounds that the conduct, is, in summary, "offensive, abusive, harassing, and disrespectful", contravenes various aspects of the Code and the Undertaking and represents a failure to take action under the PIO. To this end, the Secretary contends that these proceedings deal with different aspects to those under consideration in Thaler (No 1) and do not represent a double jeopardy or the like.
3. The Secretary contends that Grounds 7 through to 16 concerns conduct that was not the subject of Thaler (No 1). I pause to note, however, that Ground 7 appears to include a statement from the 6 March 2025 video that was the subject of Thaler (No 1). Ground 8 also concerns a statement from the 6 March 2025 video, elements of which appear to have been addressed in Thaler (No 1), although the allegation contained in that Ground arises only in these proceedings. In any event, Grounds 7 and 8 allege that this conduct represents a contravention of the Undertaking and a failure to take action under the PIO and, accordingly, differs from the aspects addressed in Thaler (No 1), even if the conduct upon which the allegations rest has been referred to before. The later statements also include some comments similar to, or the same as those the subject of Thaler (No 1).
4. The Secretary's remaining allegations include that statements in an audio and visual recording published by the Councillor to YouTube on 18 March 2025 (the 18 March 2025 video) and 26 March 2025 (the 26 March 2025 video) and statements made on a live video uploaded to YouTube (the 30 March 2025 video), were offensive, abusive, harassing, and disrespectful and contravened the Code and the Undertaking which constitutes a failure to take action as required under the PIO.
5. Without being exhaustive, the conduct includes the making of public statements including the following:

(1) Stating that the interim General Manager "is a complete piece of shit" and "[h]e is nasty. And I will not tolerate it. And I'm making this as a public record. And I will say again, Fuck you" (Grounds 9, 9A, 9B,10).

(2) Stating about another Councillor that she was "really ugly" and "just awful" and that "if I'm not entitled to say what I think about the ugly creature that sits opposite me and sniggers and sneers and interrupts, then there is no free speech in this world" (Grounds 11, 11A, 11B).

(3) Referring to a Council employee as "it" and stating that the employee "doesn't know whether it's a boy or a girl" (Grounds 12, 12A, 12B).

(4) Referring to a Councillor as a "demented goose" (Grounds 13, 13A, 13B) and implying wrongdoing, an allegation made outside the established process (Ground 14).

(5) Referring to a Councillor as a "fat dumb blonde" (Grounds 15, 15A, 15B).

(6) Making a statement implying wrongdoing, an allegation made outside the established process, against the Mayor of the Council (Ground 16).

"that on the face of the statements made by Mr Thaler, each is capable of constituting a failure to take action under the PIO, and by s 438HA(11), those failures to take action are taken to be misconduct for the purposes of pt 3 of ch 14 of the LG Act."

1. The Report details the allegations against the Councillor, an analysis of the evidence, evidence of the complaints made about the alleged conduct, and includes the PIO signed by the Minister, the Undertaking signed by the Councillor, the Code, screen captures and transcripts of the relevant videos and actions taken incidental to those videos, and relevant email communications.

The recent decision of Thaler v Secretary, Department of Planning, Housing and Infrastructure [2025] NSWCATOD 88

1. The Tribunal in Thaler (No 1) dealt with an appeal by the Councillor under s 440L of the Act, from the decision of the Secretary to suspend him from civic office for three months on the basis that he had engaged in misconduct in various communications on social media. The Secretary also ordered that Councillor Thaler apologise for his misconduct. In determining the external appeal under s 440L, the Tribunal was engaging in an appeal on the merits of the Secretary's decision. The Tribunal was required to determine, on the basis of the evidence before it, whether the alleged misconduct was proven and the appropriate disciplinary response: at [24]. The Tribunal confirmed the decision of the Secretary, having decided that the Councillor had engaged in misconduct and that the Secretary's decision was valid: at [4].
2. The Tribunal is, here, dealing with proposed referred proceedings concerning allegations that the Councillor failed to take action under the PIO by, inter alia, making the statements he made on social media. Although some of the conduct giving rise to these allegations is the same as that which has been dealt with in Thaler (No 1), it is the alleged failures under the PIO that are the subject of the proposed proceedings, rather than the conduct per se, or the breaches of the Code alone. There is a different case to be answered than that which was dealt with in Thaler (No 1), in addition to the fact that some conduct the subject of these proceedings has not been dealt with at all in Thaler (No 1).

1. As noted above, it is appropriate in order to determine whether to accept the referral, to consider the following factors:

(1) Whether a reasonably arguable case has been established.

(2) Whether the misconduct alleged is more serious than trivial or trifling conduct.

(3) Whether any circumstance exists which would make the conduct of proceedings unfair to the respondent, or contrary to the public interest.

1. Having reviewed the Report and the submissions of the parties, my reasons for accepting the referral follow.

1. At this stage, it is appropriate for the Tribunal to consider the Secretary's evidence, in much the same way as one would a summary dismissal application: see Jali Local Aboriginal Land Council v Anderson [2025] NSWCATOD 57 at [10]- [13]. Accepting the evidence, at its highest, one would ask whether the evidence was capable of grounding the allegations and sustain the ultimate relief sought. Taking such an approach does not pre-empt the conclusion, nor deny, ultimately, any defences.
2. The statements upon which each allegation is based are contained in video recordings made by the Councillor. Accordingly, there can be no reasonable dispute that the statements were, in fact, made. Further, on their face, the statements (or, at least, a multitude of them) are capable of being characterised as, variously, offensive, abusive, harassing and disrespectful.
3. The Councillor submits that the context in which these statements were made, is highly relevant to how one might characterise them; and there is force in that submission. Nevertheless, whilst I accept that context will be highly relevant to the Tribunal in undertaking its statutory task in conducting the proceedings, that is a matter for the Tribunal at hearing and not relevant for this preliminary matter. On their face, a multitude of the statements are capable of being characterised as offensive.
4. This, is turn, supports a conclusion that the Secretary has a reasonably arguable case that the conduct or some of the conduct constitutes a breach of the Code and the Undertaking as extracted above; and constitutes a failure to take action as required under the PIO. This could then support the relief sought.

1. As to the seriousness of the conduct the Secretary submits that the statements amount to:

"sustained, targeted, and demeaning commentary directed at individuals in a manner likely to humiliate, belittle, and undermine them publicly, both personally and in their professional roles. The actions therefore form part of a pattern of misconduct."

1. Given the period of time over which the statements were made, the fact that several individuals were the subject of the statements on several occasions and that the comments can (at least) be described as derogatory, this is an apt description. The conduct is not trivial or trifling: it is serious.
2. In the event that it is made out that the conduct was a failure to take action under the PIO, including through contravening the Code or the Undertaking, as the conduct occurred whilst the Councillor was subject to those conduct expectations, then the breach might be described as wilful or demonstrating a lack of insight into appropriate conduct. Either way, that would add to the seriousness of the conduct (assuming it was found to be a breach of the expectations for his conduct).
3. The Secretary submits that the conduct raises real concerns about "the psychological safety of the workplace of council officials". Whilst accepting that context is critical, this submission is nonetheless open on the face of the statements which, as identified above, should be accepted as having been made.

Prejudice to the Councillor and the public interest

1. As to any circumstances that might make it unfair or contrary to the public interest for the Tribunal to conduct the proceedings, the Councillor raised numerous matters.
2. First, he submitted that these proceedings constitute extra-curial punishment. However, despite some references in various cases to the Tribunal's jurisdiction being at least partly disciplinary, it is protective: Office of the Local Government v Neville [2018] NSWCATOD 31 at [35]- [38]. The Councillor's submission, at least at this ancillary stage, therefore does not provide a basis to refuse the referral.
3. Second, the Councillor also submits that as the bulk of the conduct the subject of the proposed referral is that which was the subject of Thaler (No 1), he would be subjected to double counting or double jeopardy, if the Tribunal accepts the referral. For the following reasons, I find, at this preliminary stage, that there is no double jeopardy or double counting:

(1) The conduct which relates to Grounds 9 to 16 was not before the Tribunal in Thaler (No 1). These grounds raise new aspects of the Councillor's conduct arising from videos uploaded to social media not included in Thaler (No 1) and therefore provide no basis to refuse the referral, if it were otherwise warranted.

(2) To the extent that the conduct in Grounds 1 to 8 was previously before the Tribunal, the findings of misconduct were not based upon breaches of the PIO, which is the subject of the proposed referral proceedings. Even though there is an overlap, the elements of what the Secretary must prove, in the referral proceedings, to get the relief sought, are not coextensive with the elements in Thaler (No 1). The failure to take steps under the PIO, and the consequent breach of the Undertaking, is an additional circumstance, unique to the proposed referred proceedings. To this end, the Secretary relied on Pearce v Queen (1998) 194 CLR 610; [1998] HCA 57. Whilst this case concerned the concept of double jeopardy in the criminal process, the principles are relevant. Thaler (No 1) concerns findings of misconduct grounded upon breaches of the Code, and these proceedings concern various failures to take action under the PIO and breaches of the Undertaking, which the Tribunal in Thaler (No 1) expressly recognised did not form part of the Secretary's submission in those proceedings: at [50]. The elements are therefore different.

(3) The Act does not, expressly or impliedly, prohibit a finding that a person has failed to take action under a PIO where the conduct is also misconduct for some other reason.

(4) Insofar as there is any suggestion that Grounds 1 to 8 vex the Councillor twice, this could be considered by the Tribunal seized of the referral proceedings and appropriate orders made to ameliorate any identified prejudice. Further, the fact that the Councillor has been subject to earlier proceedings concerning some of the same conduct, may be relevant to the protective orders ultimately made.

1. The Councillor's other material submissions are addressed as follows:

(1) That the Secretary has not proved that the PIO was issued with the proper authority and the Councillor points to some bases to suggest it might not have been. For instance, it is submitted that whilst the Minister alleged multiple breaches of the Work Health and Safety Act 2011 (NSW) to support him applying the PIO, no evidence to support these allegations have been provided. Accordingly, this does not rise beyond the level of speculation, at this point.

(2) That the Secretary is "conducting and waging a vendetta against me to further deprive the public from my representation" further, it is submitted that there is a "conspiracy to attack me, malign me, lie about me, target me, complain about me, discipline me". However, even were this to be accepted, this cannot reverse the characterisation of the Councillor's conduct, as described above. Albeit it may be part of the context, discussed above; and provide some relevant explanation.

(3) The Councillor also submits that the former Secretary left his role in 2023 and therefore his Instrument of Delegation is no longer in force and calls into question the instrument of sub-delegation which was allegedly relied upon here. However, this does not rise beyond the level of speculation, at this point.

(4) That Department staff themselves cannot be involved in the creation of complaints that they then rely on to issue disciplinary action, citing Bay v AHPRA & Ors [2024] QSC 315. However, those were judicial review proceedings concerning a suspension decision made by the Medical Board of Australia, where the Board had conceded that their suspension decision was affected by a reasonable apprehension of bias and a lack of procedural fairness. These concessions arose from several facts unique to that case which would be unlikely to give rise to a general proposition of the kind suggested by the Councillor. If the Councillor intends to rely on assertions of apprehended bias or a lack of procedural fairness in the making of the relevant complaints, they can be dealt by the Tribunal, in due course.

(5) The cost of "Lawfare" is getting expensive for the local community as the Councillor contends that he will pass the costs on to the community via expenses claimed upon the Council. Further, he submits that he will suffer losses if the decision is ultimately found to be wrong and he cannot be made whole. However, the costs of litigation, including in the protective jurisdiction, cannot be avoided. Ultimately, it is incumbent on each party to take a sensible approach. This is not the occasion to consider whether the Councillor's costs of this litigation ought to be borne by the community.

(6) The decision to suspend an elected official is an attack on democracy which is unwarranted. However, at this stage, this is an unparticularised submission; but in any event, it may well be answered by reference to the fact that these proceedings are protective and designed to uphold the integrity of local government: see s 7 of the Act.

(7) There is a damage to his public reputation which shouldn't be exacerbated by a further referral and further proceedings. Ultimately, this may be an aspect of double counting, which is addressed above.

(8) There is a suite of employment and workplace protections that have been avoided by multiple proceedings in the Tribunal. Ultimately, this too may be an aspect of double counting, which is addressed above.

"I say that the Department, the OLG do not get to control me 24 hours a day - seven days a week - 365 days per year via some arbitrary 'policy': which is out of date, broken and knowingly abused."

"OLG thinks they can police my every utterance, my every thought, my every action, my public speech. The Council is similarly using the Code to police me while not applying the 'rules' of the 'code' equitably or fairly across all SMRC councillors."

1. The Councillor urges the Tribunal not to "support" the Secretary in efforts to silence him by "this bullying, intimidation and lawfare".
2. However, contrary to the Councillor's submissions, this is not "Lawfare". The referral process and any subsequent proceedings are protective of the public. Ultimately, if the Secretary's action in bringing this referral is found to be misconceived or done for some malevolent purpose, the proceedings would be dismissed as such by the Tribunal. However, these submissions do not rise above highly speculative, inflammatory contentions. In accepting the referral, the Tribunal is not intending to support anything other than the protection and safety of the public and the integrity of the local government, through determining to conduct the referred proceedings which will be conducted in the usual way, with both parties being given an opportunity to be heard and to put their cases.
3. The Councillor may raise many of these issues before the Tribunal conducting the proceedings. In light of the foregoing analysis, it would not be unfair or against the public interest to accept this referral.

1. Ultimately, in the face of what appears to be (viewed in the way appropriate for such a preliminary decision) a persistent and consistent pattern of making highly offensive, derogatory comments, I am satisfied that the Secretary has an arguable case concerning failures to take action under the PIO that could, under s 438HA(11) of the Act, amount to misconduct for the purposes of pt 3 of ch 14 of that Act. Further, the Councillor has not provided a sound basis as to why it would be unfair or against the public interest to accept the referral, if it were otherwise warranted.
2. Of the many submissions made by the Councillor, some could properly be the subject of further consideration by the Tribunal, on the evidence and submissions then before it, once the proceedings commence. This is not the occasion for a comprehensive consideration of these points.
3. The Tribunal determines to conduct the referred proceedings.

(1) Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), the Tribunal dispenses with a hearing.

(2) Pursuant to s 470A of the Local Government Act 1993 (NSW), the Tribunal determines that it will conduct proceedings into the matter.

(3) The matter is listed for directions at 10 am on 26 August 2025.

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.