Registrar, Aboriginal Land Rights Act 1983 v Boota

NCAT Occupational|2020-05-04|Before: Richard Conway J

REASONS FOR DECISION

On 27 February 2019 the Registrar, Aboriginal Land Rights Act 1983 (the Registrar), referred this matter to the Tribunal under s 181K(1)(c) of the Aboriginal Land Rights Act 1983 (the ALR Act), alleging misconduct by Ms Janice Christine Boota, a former officer of the Jana Ngalee Local Aboriginal Land Council (the JNLALC).
As required by s 181K(4) of the ALR Act, the Registrar provided a report to the Tribunal, which included a statement of reasons for the referral: I, Nicole Courtman, Registrar, Aboriginal Land Rights Act 1983 (NSW), am of the opinion that the alleged misconduct of Ms Janice Christine Boota warrants the referral of this matter to the NSW Civil and Administrative Tribunal (NCAT) as stipulated under section 1818K(1)(c) of the Aboriginal Land Rights Act 1983 (NSW). Ms Boota allegedly used internet banking to transfer funds on several occasions from the Jana Ngalee Local Aboriginal Land Council (JNLALC) bank account without authorisation from the JNLALC. She achieved this alleged fraud whilst she was a Board member of the JNLALC. In doing so, Ms Boota breached the Model Code of Conduct for Local Aboriginal Land Councils under Schedule 3 of the Aboriginal Land Rights Regulation 2014 (NSW) and has engaged in serious misconduct. In my opinion, the seriousness of Ms Boota's alleged actions warrants the referral of this matter to NCAT, which is conferred with higher and broader powers, to determine the appropriate disciplinary actions and orders.

Background

The Registrar's Report provided a summary of the facts as at the date of the referral to the Tribunal: 1. Executive Summary 1.1 It is alleged that Ms Janice Christine Boota (Boota) transferred funds from the Jana Ngalee Local Aboriginal Land Council's (JNLALC) business bank accounts to her own private bank account without authorisation. It is alleged that Boota did this with the intention of defrauding monies from JNLALC. 1.2 It is alleged that Boota successfully achieved the unauthorised funds transfer, in part, due to her position as a JNLALC Board member at the relevant time. 1.3 Boota's abovementioned actions and behaviours amount to breaches of sections 176(1) and 181A(1)(b) of the Aboriginal Land Rights Act 1983 (NSW) (the Act) and the Model Code of Conduct for Local Aboriginal Land Councils (Code of Conduct) under Schedule 3 of the Aboriginal Land Rights Regulation 2014 (NSW). A copy of the Code of Conduct is annexed at Appendix A. 1.4 Due to the serious nature of Boota's conduct and actions, Registrar, Aboriginal Land Rights Act 1983 (NSW) is of the opinion that this matter should be referred to NSW Civil & Administrative Tribunal (the Tribunal) pursuant to section 181K(1)(c) of the Act, and respectfully seeks the Tribunal to make the orders sought herein. 2. Facts 2.1 At all material times, Boota was a Board member of JNLALC. As a Board member of JNLALC, Boota had a duty to uphold and abide by the Code of Conduct. 2.2 At all material times, Boota was not an authorised signatory and did not have authority to access or manage the JNLALC Business Online Saver Account, No xxxx7916 (JNLALC Saver Account) nor the JNLALC Cheque Account, No xxxx4360 (JNLALC Cheque Account), both held at the Commonwealth Bank of Australia (CBA). A copy of the CBA Application and Authority of Business Accounts showing the authorised signatories for these bank accounts is annexed at Appendix B. 2.3 At all material times, Boota had a personal bank account, No xxxx8335 (Boota's Account) also held at CBA. 2.4 During the period between 21 June 2018 to 30 June 2018, it is alleged that Boota performed a number of unauthorised transactions involving the three abovementioned accounts. It is alleged that Boota initially transferred funds from the JNLALC Saver Account to the JNLALC Cheque Account and in turn transferred the funds to the Boota's account without authorisation of the JNLALC. 2.5 It is alleged that Boota, via the CBA app, performed the following transactions and transferred funds from the JNLALC Saver Account to the JNLALC Cheque Account without authorisation: Date Amount 21 June 2018 $80.00 21 June 2018 $5,000.00 21 June 2018 $60,000.00 26 June 2018 $8,000.00 28 June 2018 $15,000.00 30 June 2018 $10,000.00 Total $98,080.00 2.6 A copy of the bank account statement for JNLALC Saver Account for the period 31 May 2018 to 30 June 2018 showing the above transactions is annexed at Appendix C. 2.7 A copy of the list of transactions for the JNLALC Cheque Account for the period from 21 May 2018 to 2 July 2018 showing receipt of funds from the above transactions is annexed at Appendix D. 2.8 It is alleged that Boota, via the CBA app, subsequently performed the following transactions and transferred funds from the JNLALC Cheque Account to Boota's Account. Records of these transactions are also shown on the list of transactions for the JNLALC Cheque Account (Appendix D). Date Amount 21 June 2018 $100.00 21 June 2018 $220.00 21 June 2018 $2,000.00 21 June 2018 $60,000.00 21 June 2018 $600.00 26 June 2018 $8,000.00 28 June 2018 $15,000.00 30 June 2018 $10,000.00 Total $95,920.00 ("Unauthorised Transactions") 2.9 As a result of the Unauthorised Transactions, Boota received a total sum of $95,920.00. 2.10 During JNLALC's investigations of the Unauthorised Transactions, Boota provided a copy of the List of Transactions for Boota's Account showing receipt of funds from the JNLALC Cheque Account for the period from 28 June 2018 to 2 July 2018. A copy of the List of Transactions for Boota's Account for the period from 28 June 2018 to 2 July 2018 is annexed at Appendix E. 2.11 On or about 3 July 2018, Mr Ross James, CEO of JNLALC attended Tabulam Police Station and lodged a Fraud Assessment (Fraud Assessment) and a Fraud Report Form (Fraud Report) against Boota. Copies of the Fraud Assessment and Fraud Report are annexed at Appendix F. 2.12 On or about 30 July 2018, police officers from NSW Police Richmond Local Area Command arrested and charged Boota on eight (8) counts of obtaining financial advantage by deception. 2.13 Between 30 July 2018 and 22 August 2018, Boota was charged with a further six (6) counts for obtaining financial advantage by deception. 2.14 On or about 22 August 2018, Boota appeared at Casino Local Court on a total of fourteen (14) counts for obtaining financial advantage by deception. Boota pleaded not guilty and reappeared at Casino Local Court on 7 November 2018. On 7 November 2018 the matter was adjourned for committal hearing on 9 January 2019. As some of the matters are indictable, it will eventually be transferred to the District Court. 2.15 The Commonwealth Bank of Australia subsequently reimbursed the JNLALC for the full amount Boota transferred, thereby covering the Land Council for the loss incurred.
Part 3 of the Report alleged that Ms Boota's alleged conduct and actions amount to a breach of the Code of Conduct, transgressing clauses 1, 2, 4, 5 and 6 of the Model Code of Conduct, and that she is guilty of misconduct as defined in s 181A(1)(b) of the ALR Act; and that Ms Boota's alleged conduct and actions also amount to a breach of the statement of obligations of Board members in s 176(1) of the ALR Act; and noted that if convicted of any of the charges referred to in paragraphs 2.12 and 2.13 of the Report, Ms Boota would be disqualified from holding office in any LALC pursuant to s 66 of the ALR Act.
Part 4 of the Report stated that the CBA has reimbursed the JNLALC for the total amount transferred out of the LALC's account, thereby covering the JNLALC for the pecuniary loss incurred.

Amended Report

An Amended Report was filed on 2 August 2019. The amendments included the substitution of paragraph 2.2: 2.2 At all material times, Boota was not believed to be an authorised signatory and was not believed to have authority to access or manage the JNLALC Business Online Saver Account, No xxxx7916 (the JNLALC Saver Account) nor the JNLALC Cheque Account No xxxx4360 (JNLALC Cheque Account), both held at the Commonwealth Bank of Australia (CBA). A copy of the CBA Application and Authority of Business Accounts showing the authorised signatories for these bank accounts is annexed at Appendix B. However, when JNLALC checked with CBA, they discovered she was listed as a signatory (she was later removed).
A new paragraph 2.10 was inserted: 2.10 It remains unclear, from the documents contained in the NSW Police brief of evidence or from information requested from CBA how Boota's personal bank account became linked to the JNLALC's accounts, and how Boota managed to use the CBA online banking app to effect these transactions. It is also unclear under what authority she succeeded in lifting the $2,000 withdrawal/transfer limit on the JNLALC accounts to achieve the Unauthorised Transactions.
Paragraphs 2.10 and 2.11 of the original Report were renumbered to be 2.11 and 2.13, and a new paragraph 2.12 was inserted: 2.12 Between 21 June and 2 July 2018, it is alleged Ms Boota made numerous withdrawals from bank and other ATMs, and bank branches, made purchases from retail premises, and electronic transfers to their parties. It is alleged that Boota passed on some of the funds to family members and their partners. The NSW Police brief of evidence includes a statement from Mr Tyrone Close, partner to Boota's niece, who states he received two payments (of $10,000 and $5,000 respectively) by electronic transfer from Boota. He alleges that Boota told him the money just appeared in her account. On or about 2 July 2018, Ms Boota withdrew the remaining funds ($3,737.67) from her account and closed the account. All the allegedly misappropriated funds were expended.
Paragraphs 2.12 - 2.15 were renumbered to be 2.14 - 2.17, with paragraph 2.16 including the statement that the criminal proceedings against Ms Boota had been adjourned for hearing on 21 August 2019.

Further Amended Reports

A Further Amended Report was filed on 9 September 2019, to update the facts with regards to the progress of the criminal proceedings then pending against Ms Boota.
A Further Further Amended Report was filed together with an Amended Application on 21 October 2019. Part 2 of the Report was amended to record that the criminal proceedings against Ms Boota having been adjourned to 9 January 2019 and 19 February 2019, were listed for hearing on 21 August 2019 at Casino Local Court, when the prosecution withdrew the previous 14 charges of obtaining financial advantage by deception and added a single charge of stealing. Ms Boota pleaded guilty to the single charge. On 11 October 2019 at Casino Local Court Ms Boota was convicted on a charge of Larceny value >$15000, and sentenced to a term of imprisonment of 15 months, to be served by way of intensive corrections in the community, with 220 hours community service.

Orders sought

In the original Application the Registrar had sought orders under s 211A of the ALR Act that Ms Boota be disqualified from holding office in any Aboriginal Land Council for a period of up to five years, and that she pay a pecuniary penalty of $11,000.
As a consequence of the conviction for an offence punishable by imprisonment for 12 months or more, Ms Boota is by operation of s 66(1)(c) of the ALR Act disqualified from holding office as a Board member of a Local Aboriginal Land Council (LALC) for five years.
In the amended Application the Registrar seeks orders that Ms Boota be reprimanded, and that she pay a pecuniary penalty. The Registrar does not seek costs.

Tribunal proceedings

The matter was listed for directions on 29 March 2019. Ms Boota did not appear on that occasion, and the Registrar's representative advised that there was some doubt as to whether she had received notice of the proceedings as she seemed to have left the address that the Registrar had for her, which was the one given to the Tribunal. The address was subsequently changed, based on records obtained from NSW Police under summons. At the adjourned directions hearing on 21 June 2019, at which Ms Boota did not appear, directions were made for the Registrar to provide to the Tribunal and to Ms Boota any amended application, and to provide to the Tribunal an affidavit of service.
There was no appearance by Ms Boota at the next directions hearing on 16 August 2019. The proceeding was listed for an undefended hearing on 31 October 2019, and leave was granted to Ms Boota to seek to set aside or vary the orders made.
The Tribunal was able to contact Ms Boota by telephone on 31 October 2019, and she confirmed that she had received the Amended Report. The Registrar advised the Tribunal that there had been an issue with service of the Registrar's bundle of documents and submissions. The proceeding was adjourned to 31 January 2020, with directions for the Registrar to provide copies of documents not already provided to Ms Boota, for Ms Boota to provide to the Tribunal and to the Registrar any evidence and submissions on which she intended to rely, and for the Registrar to provide any material in reply.
The hearing date of 31 January 2020 was vacated at the request of the Registrar, who had received notice that delivery of the documents to Ms Boota had been delayed, and the proceeding was listed for hearing on 6 March 2020. On that occasion the Tribunal contacted Ms Boota by telephone, and she confirmed she had received all the documents, however she had not been able to respond. Ms Boota stated that she was not ready to proceed: she wanted to consult a lawyer, and to have her support person available at the hearing. The hearing was adjourned to 4 May 2020, with further time for Ms Boota to provide any evidence and submissions.
On 4 May 2020 Ms Boota advised that she had not been able to provide any documents since March 2020 due to personal issues, as she has care of her granddaughter, who is in hospital having had surgery in Sydney for a brain tumour. Ms Boota wanted the matter heard. If the matter was adjourned again, she would have to be in Brisbane with her granddaughter at hospital. The hearing proceeded later that day, with Ms Boota and her support person on the telephone.
The Tribunal acknowledges that hearing on 4 May 2020 proceeded at a time when Ms Boota was concerned for the wellbeing of her granddaughter who had recently had surgery, and in the absence of a written statement by her. All parties, including Ms Boota, wanted the hearing to proceed in the interests of resolution of the matter. Ms Boota confirmed at the hearing that she wanted the matter to proceed. Given the lengthy procedural history of the matter, and the opportunities for Ms Boota to seek appropriate advice and provide her evidence and submissions in response to the allegations; the likelihood that if the hearing were adjourned again Ms Boota would continue to be occupied with care of her granddaughter after her recent surgery; the availability of Ms Boota's support person; and Ms Boota's expressed wish to proceed, the Tribunal was satisfied that it was appropriate to proceed with the hearing, with breaks from time to time.

Evidence before the Tribunal

The Registrar relies on a bundle of documents (ex A2) which includes documents produced by NSW Police in response to a summons; copies of NSWALC Annual Reports for the years 2015/2016, 2016/2017 and 2017/2018; and the NSW Aboriginal Land Council Funding Agreement.
The NSW Police documents include documents relating to the NSW Police Force investigation, including witness statements by Ross James, CEO of JNLALC (12 July 2018), Jean Jacques Van Rotterdam, bookkeeper for JNLALC (12 July 2018), Tyrone Close, partner of Ms Boota's niece (10 September 2018), and a statement by Pearl van Twout, employee of Tattersalls Hotel confirming provision of CCTV footage to NSW Police; records of account transactions provided by the CBA; the Police Brief; and communications between NSW Police and the CBA.
The Registrar provided written submissions, filed on 12 November 2019, and further submissions addressing s 211A of the ALR Act, filed 11 March 2020.
The Registrar has filed affidavits of service for personal service of documents on 9 August 2019, 11 September 2019, 11 January 2020, and 20 March 2020. Ms Boota confirmed at the hearing that she has received a copy of all the documents.
Ms Boota did not provide any documents or evidence in reply. Ms Boota gave sworn oral evidence, and was cross examined.
The Tribunal is not bound by the rules of evidence in these proceedings. The standard of proof is the civil standard. The allegations, and the penalties sought, are serious, and in making its findings the Tribunal is required to have regard to the gravity of the allegations made, and to the seriousness of the consequences that may flow from the making of a particular finding or order: Forster v Hunter New England Area Health Service [2010] NSWCA 106; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170.

Relevant legislation

This application is the second referral by the Registrar to the Tribunal under Part 10 of the ALR Act of alleged misconduct by a Board member of a LALC. The reasons for decision in the first matter, Registrar Aboriginal Land Rights Act 1983 v Kirk [2020] NSWCATOD 43, include detail as to the governance and disciplinary provisions of the ALR Act, at paragraphs [22]-[42].
The ALR Act establishes a Local Aboriginal Land Council (LALC) for each Local Aboriginal Land Council area in New South Wales, and the New South Wales Aboriginal Land Council (the NSWALC), each of which is a body corporate. Members of a LALC are the adult Aboriginal persons listed on the LALC membership roll for the area: s 53. The NSWALC consists of an Aboriginal councillor elected for each Region in NSW: s 120. The Chairperson and Deputy Chairperson of a LALC are elected from among the Board members of the LALC (s 64(1)), and the Chairperson and Deputy Chairperson of the NSWALC are elected by the councillors of the NSWALC: s 129(1).
The term "officer" is defined in s4 of the ALR Act: officer of an Aboriginal Land Council means - (a) in relation to a Local Aboriginal Land Council, a Board member of the Council, or (b) in relation to the New South Wales Aboriginal Land Council, a councillor.
The object of a Local Aboriginal Land Council (LALC) is "… to improve, protect and foster the best interests of all Aboriginal persons within the Council's area and other persons who are members of the Council": s 51 ALR Act. The functions of each LALC include management of land vested or acquired by the Council, protection of Aboriginal culture and heritage, and financial stewardship: s 52. A LALC must ensure that no part of the income or property of the Council is transferred directly or indirectly by way of dividend or bonus or otherwise by way of profit to members of the Council, Board members or any member of staff of, or consultant to, the Council: s 52D.
The Board of each LALC is to consist of not less than 5 and not more than 10 members: s 61. Board members are elected at every fourth annual meeting of a LALC: s 63(1). A person is not qualified to be nominated to stand for election, or to be elected, as a Board member of a LALC if, at the time of the nomination or election, the person is not a voting member of the Council, or is suspended or disqualified from holding office as a Board member or is suspended from membership of the Council, or has not attended at least 2 meetings of the Council in the last 12 months: s 63(2).
The functions of the Board include to direct and control the affairs of the LALC: s 62(1). Each member elected to a Board of a LALC is required to undertake training arranged by the NSWALC, to be provided not later than 6 months after the date of election of a Board member, in relation to the matters prescribed by the regulations, including principles of governance applicable to Councils, and the provisions of the ALR Act and the Aboriginal Land Rights Regulation 2014 (the Regulation) relating to misbehaviour.
The functions of the NSWALC are specified in s 106 of the ALR Act, and include oversight of LALCs. The financial management and business planning functions of the NSWALC as specified in s 106(8) include the grant of funds for the payment of the costs and expenses of LALCs (s106(8)(e)), including by means of a funding agreement subject to conditions: s 162 ALR Act. The role of the councillors of the NSWALC includes to direct and control the affairs of the Council in accordance with the Act, and to participate in the allocation of the Council's resources for the benefit of Aboriginal people: s 130(1)(a),(b).
Part 10 of the ALR Act provides for Conduct, Disclosure and Disciplinary matters, and includes provisions imposing obligations on every councillor, Board member and member of staff of an Aboriginal Land Council, and for the preparation of a code of conduct to be observed by all officers and members of staff.
Section 176 provides: 176 Conduct of councillors, Board members and staff of Aboriginal Land Councils (cf section 439 of Local Government Act 1993) (1) Every councillor, Board member and member of staff of an Aboriginal Land Council or an advisory committee, must - (a) act honestly and exercise a reasonable degree of care and diligence in carrying out his or her functions under this or any other Act, and (b) act for a proper purpose in carrying out his or her functions under this or any other Act, and (c) not use his or her office or position for personal advantage, and (d) not use his or her office or position to the detriment of an Aboriginal Land Council. (2) Although this section places certain duties on officers and members of staff of a Council, and on councillors, nothing in this section gives rise to, or can be taken into account in, any civil cause of action.
Each LALC is required to prepare and have approved a code of conduct to be observed by all officers and members of staff of the Council, and a code of conduct to be observed by all members of the Council: s 177(1) ALR Act. The model code of conduct in Sch 3 of the Regulation applies until a code of conduct is approved for a particular LALC (s 177(6)), and provides: 1 The [name] Local Aboriginal Land Council requires its officers to observe the highest standards of conduct and ethical behaviour in all of their activities. By maintaining such standards, officers enhance their own standing as representatives of the Aboriginal community and increase the public confidence in the management and administration of the [name] Local Aboriginal Land Council. 2 Officers must uphold the objectives of the [name] Local Aboriginal Land Council and abide by the Aboriginal Land Rights Act 1983 and associated legislation, as well as policies and procedures established by the New South Wales Aboriginal Land Council. 3 As the conduct of an individual officer can reflect on the wider Aboriginal Land Council network as a whole, this Code sets out what are considered to be appropriate standards of conduct by officers. 4 Officers must refrain from conduct or action that detracts from the reputation of the [name] Local Aboriginal Land Council. 5 Officers are required to exercise complete probity, honesty and diligence in carrying out their duties and responsibilities. 6 Officers must at all times safeguard the interests of the [name] Local Aboriginal Land Council and its members, provided that officers must not knowingly be party to any illegal or unethical activity. 7 Officers must not enter into any agreement or undertake any activity that may be in conflict with the interests of the [name] Local Aboriginal Land Council, or that would prejudice the performance of their duties. 8 Officers must not use confidential information gained in the performance of their duties for any personal gain or in a manner that could be detrimental to the [name] Local Aboriginal Land Council. 9 Officers must exercise due care and diligence in performing their duties and ensure that their knowledge, skills and technical competencies suffice to discharge their responsibilities. 10 Officers are to acknowledge that this Code is to be adhered to both in spirit and to the letter, so that an officer's conduct is governed by the highest standards of personal and ethical behaviour. 11 Officers of the [name] Local Aboriginal Land Council must not, at a meeting of the Council or the Board, do any of the following things - (a) assault or threaten to assault another officer or person present at the meeting, (b) move or attempt to move a motion or an amendment that has an unlawful purpose or that deals with a matter that is outside the jurisdiction of the Council or Board, or address or attempt to address the Council or Board on such a motion, (c) insult or make personal reflections on or impute improper motives to another officer, (d) say or do anything that is inconsistent with maintaining order at the meeting or is likely to bring the Council or Board into contempt.
Div 3A of Part 10 provides for disciplinary action. Section 181B provides the grounds for disciplinary action against an officer: 181B Grounds for disciplinary action The grounds on which disciplinary action may be taken against an officer or member of staff of an Aboriginal Land Council under this Division include the following - (a) the behaviour of the officer or member of staff has - (i) been disruptive over a period, and (ii) involved more than one incident of misconduct during that period, and the pattern of behaviour during that period is of a sufficiently serious nature as to justify the taking of disciplinary action, (b) the officer or member of staff has failed to disclose pecuniary interests in accordance with Division 4 or engaged in any other misconduct of a sufficiently serious nature as to justify the taking of disciplinary action.
The term "misconduct" is defined in s 181A(1): (1) In this Division - … misconduct includes any of the following - (a) a contravention of a provision of this Act or the regulations, (b) a contravention of an applicable code of conduct, (c) an act of disorder committed by - (i) a councillor at a meeting of the New South Wales Aboriginal Land Council, or (ii) a Board member of a Local Aboriginal Land Council at a meeting of the Board or of the Local Aboriginal Land Council. (2) A reference in this Division to misconduct includes a reference to misconduct that consists of an omission or failure to do something.
Disciplinary proceedings against an officer may be initiated by a complaint or allegation made to the Registrar that there are grounds for taking disciplinary action, or a report by the Independent Commission Against Corruption or the Ombudsman: s 181D(1). The Registrar may initiate disciplinary proceedings on the Registrar's own initiative: s 181D(4).
The Registrar's power to investigate matters in relation to alleged misconduct, and the required procedure for such an investigation, is provided for in s 181E of the ALR Act. The disciplinary action that may be taken by the Registrar is specified in s 181F(1), and includes any one or more of the following: 181F Registrar may take disciplinary action (1) The Registrar may, if satisfied that there are grounds for the taking of disciplinary action against an officer or member of staff of an Aboriginal Land Council, do one or more of the following - (a) counsel or reprimand the officer or member of staff, (b) recommend that the Aboriginal Land Council dismiss the member of staff, (c) recommend that the Aboriginal Land Council take other action against the officer or member of staff, (d) in the case of an officer, suspend the officer. …
The referral to the Tribunal in these proceedings was made under s 181K(1)(c), which provides: 181K Referral of matters to NCAT (cf section 440N of Local Government Act 1993) (1) The Registrar is to refer the alleged misconduct of an officer or member of staff of an Aboriginal Land Council for the consideration of the Civil and Administrative Tribunal instead of taking disciplinary action if - (a) the Independent Commission Against Corruption has made a report recommending that consideration be given to the taking of disciplinary action against the officer or member of staff, or (b) the Ombudsman has made a report stating that the Ombudsman is satisfied that grounds exist that warrant the taking of disciplinary action against the officer or member of staff, or (c) the Registrar is of the opinion that the matter should be referred to the Tribunal. (2) If the Registrar refers any alleged misconduct to the Civil and Administrative Tribunal under this section, the Registrar is to prepare a statement of reasons for doing so and provide a copy of the statement to the officer or member of staff concerned. (3) The conduct of an investigation on the preparation and consideration of an investigator's report is not a prerequisite to a decision by the Registrar to refer a matter to the Tribunal, but the Registrar may take into consideration any such investigation or any investigator's report if one is prepared. (4) A matter is referred to the Tribunal under this section by means of a report presented to the Tribunal by the Registrar. A report may contain or be accompanied by such material and observations as the Registrar thinks fit. (5) (Repealed)
Div 6 of Part 10 provides for proceedings before the Tribunal. The powers of the Tribunal in relation to an officer of a LALC or the NSWALC are provided in s 211A of the ALR Act: 211A Decision of NCAT - conduct matters (1) This section applies where a matter has been referred to the Civil and Administrative Tribunal under section 181K. (2) The Tribunal may do any one or more of the following if it finds that the conduct concerned of an officer of an Aboriginal Land Council warrants action under this section - (a) counsel the officer, or (b) reprimand the officer, or (c) suspend the officer from office for a period not exceeding 6 months, or (d) if the referral relates to an officer of an Aboriginal Land Council who - (i) holds office as a councillor or Board member - suspend the officer from holding that office for a period not exceeding 2 years, or (ii) holds office as the Chairperson or Deputy Chairperson of the New South Wales Aboriginal Land Council - remove the officer from that office, or (e) if the officer holds office as a councillor or Board member - disqualify the officer from holding that office for a period not exceeding 5 years, or (f) order the officer to pay a pecuniary penalty of up to $11,000, or (g) order the officer to reimburse the Aboriginal Land Council for any loss incurred by the Council.

The Registrar's evidence

In his statement dated 12 July 2018 Mr Ross James, CEO of the JNLALC, stated that the Board had at that time six members, including Ms Boota. The JNLALC employs a part time administration assistant, Terrence Robinson, and a bookkeeper, Charley Van Rotterdam. Mr Van Rotterdam has access to the JNLALC bank accounts to make payments for goods and services and wages, being the Operating Account No xxxx4360 and Online Account No xxxx7916. The only authorised signatories on those accounts are Mr Van Rotterdam and Ms Ramona Walker, the Chairperson of the JNLALC. On 30 June 2018 he was informed by Mr Van Rotterdam of some suspicious transactions, with amounts totalling $25,000 transferred from the JNLALC accounts into Ms Boota's personal account. He had been informed that Ms Boota, Ms Walker and Oswald Robinson were also listed as signatories on the JNLALC bank account. On 2 July 2018 Mr Van Rotterdam informed him that on further inquiries with the CBA the amount of the fraudulent activity was approximately $100,000. He delivered a letter to the manager of the Grafton branch of the CBA to have Ms Boota, Ms Walker and Oswald Robinson removed as signatories. On 3 July 2018 he reported the fraudulent transactions to the NSW Police.
In his statement dated 12 July 2018 Mr Van Rotterdam stated that as far as he was aware the only person with authorised access to the JNLALC bank accounts was himself. He works from home and can access the accounts remotely, using a "dongle" to access the profile, and also using a User ID and password to access the CBA web page.
Mr Van Rotterdam stated that on 30 June 2018 he noticed a couple of transfers that he had not made from the JNLALC Online Account into the JNLALC Admin Account, in the amounts of $15,000 and $10,000; those transactions then went out to a different account. He checked whether the amounts had gone back into the Online account, which they had not. He noticed that the transactions had been done through the COMM bank App which is an App that he does not utilise. He noticed that the transactions were authorised by Ms Boota and were transferred to another CBA account number which was not on his list of payers. Ms Boota was a Board member of the JNLALC, however she should not have access to the JNLALC bank accounts and as far as he was aware was not authorised to access them and make any transactions.
Mr Van Rotterdam stated that he had contacted the bank, and a bank employee told him that Ms Boota was authorised and her private account was linked to the JNLALC account, and she had been into the Casino branch a week earlier and changed her password and upped her withdrawal limit. He requested that both accounts be closed. He attended the Casino branch on 2 July 2018 and was told that Ms Boota, Ms Walker, Samantha Robinson (also a Board member) and Oswald Robinson were authorised to access the accounts. He identified 8 fraudulent transactions being transfers from the JNLALC Admin Account to Ms Boota's account between 21 June 2018 to 30 June 2018; the same amounts were transferred from the JNLALC Online Account to the Admin Account before being transferred to Ms Boota's account. Mr Van Rotterdam stated that in 2005 the JNLALC had moved away from a chequing system to internet banking, and when that happened he and Ms Walker became signatories. He assumed when they set up the internet banking system that Ms Boota, Oswald and Samantha were no longer signatories or had access to the accounts.
The NSW Police Brief includes statements by Detective Sergeant Mackie (30 July 2018, 10 October 2018), in the latter identifying transfers from Ms Boota's account to Tyrone Close (24 June 2018: $10,000; 28 June 2018: $5,000); Colin McGrady (26 June 2018: $3,000; 28 June 2018, $5,000: 29 June 2018, $2,500) and Tia Robinson (30 June 2018: $4,000) (ex A2 p 170).
Detective Sergeant Mackie made several requests for information from the CBA as to how Ms Boota's account was linked to the JNLALC account xxxx4360, on 24 July 2018 (ex A2, p 99) and 9 May 2019 (ex A2 p 101), with a reference on 8 May 2019 to having made four requests through Iask. In his statement of 10 October 2018 Detective Sergeant Mackie stated that he had not received a response to that request. There is no indication in the evidence provided to the Tribunal that the bank has since provided any information. The Registrar's submissions state that she was advised by Det Sgt Mackie that despite the requests to the CBA, the Police were unable to obtain conclusive evidence as to how the JNLALC accounts were linked to Ms Boota's account. Consequently, Police withdrew the multiple charges and replaced the charges with a single charge of stealing to cover the entire $95,920 taken, and Ms Boota pleaded guilty to the single charge of Larceny >$15,000.

Ms Boota's evidence

In oral evidence Ms Boota stated that she had been a Board member of JNLALC for five years or more. She had not resigned as a Board member. During her time as a Board member she had not undertaken any training courses. She agreed she knew about the rules of the JNLALC and about the roles and functions of the Board, and attended Board meetings and saw financial reports. She was not aware that amounts above $50 had to be authorised by two signatories. She was not involved in signing or operating the JNLALC accounts electronically. Ms Boota did not know how much funding JNLALC receives from the NSWALC.
Ms Boota's evidence was that she did not know how the money got into her bank account, and she still does not know. She did not know the password and still does not know it. She knew it was not her money, and she pleaded guilty to spending the money. She pleaded guilty because she did not want to go to gaol. Ms Boota stated that she knew that $95,920 was transferred to her personal account, and commented that someone else was involved in it. She did not do the transfers. Ms Boota agreed she had been to Casino to increase the limit on her account, which allowed her to transfer more. She did not ask questions about how the money got there. She agreed there was $3,737.67 in her account when it was closed on 2 July 2018, and that she has not given the money back to JNLALC. Ms Boota agreed she had bought cars for three people, her niece Kirra, Kirra's brother Nicholas, and Kirra's boyfriend Tyrone. Ms Boota agreed that she had not made an apology. She did not do the transfers, and cannot explain how the money got into her bank account.
Ms Boota stated that she has been caring for her granddaughter, who became sick with a brain tumour in 2016, and was sick again in 2017. She has been caring for her the whole time. Ms Boota stated that after her fortnightly wage payments of $293.40 stopped in June 2018, she has been receiving income support payments.

Findings

It is not in dispute that in June and July 2018 Ms Boota was a Board member of the JNLALC.
Based on the documents on which the Registrar relies, which were not contested by Ms Boota, the Tribunal finds: 1. Two of the three bank accounts held by the JNLALC with the CBA in June and July 2018 were the JNLALC Online Saver account xxxx7916 in which the bulk of its funds were held, and the JNLALC Cheque Account xxxx4360, used for payments for goods and services and wages. The Tribunal notes that the former account is referred to variously in the witness statements as the Saver Account and the Online Account, while the latter is referred to as the Operating Account or the Admin Account; 2. In total $98,080.00 was transferred from the JNLALC Online Saver Account xxxx7916 to the JNLALC Cheque Account xxxx4360 in 8 transactions between 21 June 2018 to 30 June 2018 (ex A2, pp 49, 51-53); 3. A total amount of $95,920.00 was transferred from the JNLALC Cheque Account xxxx4360 to Ms Boota's personal account xxxx8335 in 8 transactions between 21 June 2018 to 30 June 2018, being amounts of $100, $200, $2,000, $60,000 and $600 on 21 June 2018; $8,000 on 26 June 2018; $15,000 on 28 June 2018; and $10,000 on 30 June 2018 (ex A2, pp 51-53, 211-215); 4. The records for Ms Boota's account xxxx8335 confirm a number of ATM withdrawals including at Tattersalls Hotel and at the Casino branch of the CBA, some of which were recorded on CCTV (ex A2, p 171); transfers to other accounts, including a total of $18,100 for "Car"; and branch withdrawals including for an amount of $37,030.00 on 22 June 2018. There were two further ATM withdrawals from Ms Boota's account after the discrepancy in the accounts was identified, each of $2,000 on 30 June and 1 July 2018, and Ms Boota's account was closed on 2 July 2018, with a balance remaining of $3,737.67; 5. Ms Boota was charged on 30 July 2018 with 8 offences under s 192E(1)(b) of the Crimes Act 1900 (dishonestly obtain financial advantage by deception) for each of the transfers from the JNLALC Online Saver account xxxx7916 to the JNLALC Cheque Account xxxx4360 and from that account to Ms Boota's account xxxx83315 on 21 June 2018, 22 June 2018, 26 June 2018, 28 June 2018, and with 6 offences under s 193B(2) of the Crimes Act (knowingly deal with proceeds of crime) for each of the transfers from Ms Boota's account to Colin McGrady, Tyrone Close and Tia Robinson; 6. The charges under s 192E(1)(b) and s 193B(2) of the Crimes Act were withdrawn, and Ms Boota pleaded guilty to and was convicted on a single charge of Larceny >$15,000.
Based on the evidence of Mr Van Rotterdam and Mr James, the Tribunal finds: 1. In June and July 2018 Ms Boota was not authorised to operate the JNLALC bank accounts. She was one of three or four people subsequently found to be signatories, without authorisation at least after 2005 when the JNLALC accounts were changed from a chequing system to an internet banking system; and 2. The discrepancies in the JNLALC accounts were noticed by Mr Van Rotterdam on 30 June 2018, the date on which the final transfer from the JNLALC cheque account to Ms Boota's account ($10,000) was made, and he contacted Mr James and the bank on that date.
A total of $95,920.00 was transferred into Ms Boota's personal account from the JNLALC Online Saver Account during the period 21 June 2018 to 30 June 2018, the only source of funds going into that account after the salary payment of $293.40 on 21 June 2018. The records of the two JNLALC accounts show that the transfers to Ms Boota's account of $60,000 on 21 June 2018, $8,000 on 26 June 2018, $15,000 on 28 June 2018 and $10,000 on 30 June 2018 followed immediately on transfer of those same amounts from the JNLALC Online Saver account to the JNLALC Cheque Account. The Tribunal is satisfied that the source of the funds going into Ms Boota's personal account was the JNLALC accounts.
The Registrar submits that Ms Boota would have undertaken training into her responsibilities as a Board member, however Ms Boota denied she had had training. There is no documentary evidence to confirm that she had. While Ms Boota's evidence was that she had been a Board member for 5 years or so, Mr Van Rotterdam's statement suggests it was for a longer period, as when he started working for JNLALC in 2004 or 2005 Ms Boota was a Board member. Whether or not Ms Boota had undertaken the training required by s 65 after the amendments made to the ALR Act by the Aboriginal Land Rights Amendment Act 2006, the Tribunal is satisfied, having regard to the length of her service as a Board member and to her evidence that she attended Board meetings where financial matters were discussed, that she had some knowledge of the governance responsibilities of Board membership.
Ms Boota does not deny that she spent the funds in her account, and she pleaded guilty to the single charge of Larceny >$15,000. She does not deny the record in the NSW Police Case Narrative (ex A2, p 94) that she purchased a number of motor vehicles for family members, including her niece, her niece's brother and her niece's partner Tyrone Close. In his statement to Police (10 September 2018) Mr Close stated that he used $10,000 transferred from Ms Boota to buy a car and a second amount transferred of $5,000 for a ute; he gave some of the money back to Ms Boota and spent the rest. Other transfers from Ms Boota's account included $4,000 to Tia Robinson and a total of $10,500 to Colin McGrady (ex A2, pp 258-271). Ms Boota does not deny that she made the transfers of funds from her account to Mr McGrady, Mr Close and Ms Robinson.
Based on those admissions, and the copies of bank records in evidence, the Tribunal finds that Ms Boota spent the funds in her bank account derived from the transfers from the JNLALC account, in lump sum withdrawals for purposes such as purchase of motor vehicles, transfers to Colin McGrady, Tyrone Close and Tia Robinson, and on other personal expenditure including purchases from retail stores and restaurants, and cash withdrawals at ATMs and at Tattersalls Hotel Casino.
The Tribunal finds, based on the evidence of Mr James and Mr Van Rotterdam and the bank statements (ex A2, p 110), that there was $3,737.67 remaining in Ms Boota's account when it was closed on 2 July 2018. There is no evidence as to what happened with that money, however the Tribunal accepts Ms Boota's oral evidence that it was not returned to the JNLALC.
Ms Boota's evidence to the Tribunal was that she did not do the transfers of money and it was someone else. She cannot explain how the money got into her account, and did not ask questions, but does not deny that she spent it. Ms Boota denied having admitted to moving the money, as recorded in Mr James' diary notes annexed to his witness statement (ex A2, p 279). She confirmed in her oral evidence that she had said in July 2018 that she would be disputing any Board meeting outcomes and would not be resigning. Ms Boota agreed she had not made an apology.
The Tribunal is satisfied, based on Mr James' statement of 12 July 2018, that Ms Boota, at that time a Board member of the JNLALC, was one of a number of signatories on the JNLALC bank accounts in June and July 2018. The evidence before the Tribunal does not establish how she was listed as a signatory to the accounts, or how she had internet access to the accounts, in circumstances where according to Mr Van Rotterdam's statement of 12 July 2018 she had been a signatory before 2005 when the JNLALC set up internet banking and moved away from the chequing system, and he assumed that after that time she was no longer a signatory or had access to the accounts. The Application and Authority for Business Accounts provided by the Registrar (referred to at para 2.2 of the Report) which identifies Ms Walker and Mr Van Rotterdam as the authorised signatories on the three JNLALC accounts including xxxx4360 and xxxx7916 does not assist, as it is dated 14 August 2018.
The Registrar submits that the Tribunal should find that Ms Boota was responsible for the transfers between the two JNLALC bank accounts and from the JNLALC Cheque Account into her personal account. In support of that contention the Registrar relies on Ms Boota's actions in changing her password and increasing her withdrawal limit shortly before the transfers, and the report from the bank that Ms Boota authorised the transfers and that her account was linked to the JNLALC accounts.
In her oral evidence Ms Boota agreed to the proposition that she had been to the Casino branch the week before the funds were transferred and increased the limit on her account, which allowed her to transfer more money. That is consistent with Mr Van Rotterdam's statement at paragraph 8 of his witness statement that he was told by a bank employee that Ms Boota had changed her password and upped her withdrawal limit. There is a comment in one of the requests made to the CBA by Det Sgt Mackie for information about how Ms Boota's accounts came to be linked to the JNLALC accounts that "On a date around 21/6/2018 Boota attended a CBA branch believed to be Casino and amended the limit of transfer on the victim accounts to enable her to transfer greater amounts" (ex A2 p 179). However, the response to NSW Police from the bank on 17 July 2018 (ex A2 p 177) was that it was "unable to locate any interaction on the Jana Ngalee Local Aboriginal Land Councils account asking for the Netbank transfer limit to be increased so we can obtain the date and time she came into the branch". That response includes the statement "Account xxx 4360 in the name of Jana Ngalee Local Aboriginal Land Council was linked to Netbank ID in the name of Janice Christine Boota", and concluded that the file had now been closed.
At its highest the evidence supports a finding that Ms Boota increased the withdrawal limit on her personal account shortly before the transfers into that account from the JNLALC accounts, and does not support a finding that she was responsible for the transfers.
As to the Registrar's reliance on the report that Ms Boota's account was linked to the JNLALC accounts and that she authorised the transfers, the CBA has been unable to provide evidence to confirm how Ms Boota's account came to be linked with the JNLALC accounts. The documents obtained by NSW Police as part of their investigation do not provide any confirmation from the bank other than the statement on 17 July 2018 that Ms Boota's personal account was linked to the JNLALC Cheque account. At its highest, the evidence is that, as recorded at para 8 of his witness statement, Mr Van Rotterdam was told by a bank employee that Ms Boota was authorised on the JNLALC account and her private account was linked to the JNLALC account, and that he noticed that transactions on the JNLALC accounts made through the COMM bank App and authorised by Ms Boota.
Ms Boota denied in oral evidence having any involvement in signing cheques or making electronic transactions on behalf of JNLALC. The only evidence as to any acknowledgement by Ms Boota of involvement in the transfers is the diary note by Mr James annexed to his witness statement (A2, p 279) recording that on 2 July 2018 "Disc Terry/Ramona, on their way to Ballina to see CVR, has spoken to Janice who admitted than [sic] changed story to CVR moved the money". However there is no indication in the statements of Mr James or Mr Van Rotterdam as to who had spoken to Ms Boota, or confirmation in either statement that Ms Boota had made such an admission to either of them. Ms Boota denies making any admission.
The CCTV footage to which Detective Sergeant Mackie referred in his statements does not assist, as it is limited to footage of Ms Boota's withdrawals at the Casino branch ATM on 28, 29 and 30 June 2018, and ATM withdrawals at Tattersalls Hotel. The CBA advised on 2 August 2018 (A2, p 198) that it was unable to provide CCTV footage for the ATM at the Grafton branch because the footage had expired.
While acknowledging that it would be unusual in the extreme for some person other than Ms Boota to arrange to transfer a large sum of money into her account, in several transactions, at least without her knowledge, there is no direct evidence to confirm that it was Ms Boota, rather than some other person, who carried out the transfers between the JNLALC accounts and into Ms Boota's account on 21, 26, 28 and 30 June 2018.
The Tribunal is not satisfied that it can be safely concluded that it was Ms Boota who transferred the funds between JNLALC accounts and then into her personal account.
However, it is not in dispute that Ms Boota spent the money, and on her evidence there would be no basis for a claim that she was mistaken as to how it came into her account so as to establish any entitlement to it. The money has not been returned. Ms Boota's evidence was that she knew it was not her money. Ms Boota pleaded guilty to and was convicted on the charge of larceny, the single charge which replaced the original charges under s 193B(2) and s 192E(1)(b) of the Crimes Act 1900 after they were withdrawn.
The evidence before the Tribunal does not include any of the material put before the Casino Local Court on 21 August 2019 when Ms Boota pleaded guilty to the charge of larceny, or on 11 October 2019 when she was sentenced, and on the material available to the Tribunal the evidence was not tested. However, the conviction, and Ms Boota's evidence to the Tribunal, support the finding that Ms Boota spent a considerable sum of money, for which she had no explanation as to how it got into her account, and which she knew was not her money, in circumstances where her only other source of income was her fortnightly salary payments.

Whether Ms Boota's conduct was "misconduct"

The Registrar submitted that Ms Boota's conduct breached s 176(a)-(d) of the ALR Act and at least provisions 1 - 7 of the Code of Conduct. The Registrar submits that: 1. Ms Boota had breached the code of conduct and the provisions of the ALR Act in breach of the trust and confidence bestowed on her; 2. The theft of JNLALC funds was deliberately dishonest, when regard is had to the increase in her withdrawal limit shortly before the transfers, the size of the transfers, and that there was no return of the funds remaining when her account was closed; 3. Ms Boota impermissibly transferred or withdrew JNLALC funds on numerous occasions during June and July 2018, and when she had been exposed she continued to withdraw the remaining funds and closed her account without returning any of the stolen funds to the JNLALC; 4. The scale of the wrongdoing is gross in terms of its size and nature, because: 1. The stolen funds were meant to be used for the purposes of the JNLALC's significant work in improving, protecting and fostering the best interests of all Aboriginal persons in the area, and 2. The scale of the wrongdoing is critical, when the theft of $95,920 constitutes two thirds of the annual funding grant from the NSWALC, and could jeopardise the provision of funding in accordance with s 162(2) of the ALR Act; and 1. The wrongdoing cannot be explained by inexperience or lack of training, as Ms Boota had been a Board member from at least as early as 2005; 2. Ms Boota failed to engage in the proceedings, she failed to proffer any positive character references, there was no evidence of an apology, and she had some level of criminal history involving dishonesty, albeit not extreme.
Ms Boota did not make any submissions in reply to the Registrar's submissions.
At the time the funds were transferred into her account, and spent by her, Ms Boota was a Board member of the JNLALC. She had an obligation under s 176(1(a) of the ALR Act to act honestly and exercise a reasonable degree of care and diligence in carrying out her functions, and under s 176(1)(c), not to use her office for personal advantage. Ms Boota has not disputed that the funds that came into her account came from JNLALC funds, and the only explanation as to how the funds got there offered by Ms Boota was that someone else was involved. Ms Boota's failure to ask questions as to the source of the funds was, in the Tribunal's view, a failure to exercise diligence in carrying out her responsibilities as a Board member of JNLALC, and accordingly a breach of s 176(1)(a) and cl 5 of the code of conduct. Her decision to spend the money without inquiring as to the source was a failure to comply with cl 1 of the code of conduct, to observe the highest standards of conduct and ethical behaviour. On that basis, the Tribunal is satisfied that her conduct was "misconduct" as defined in s 181A(1)(a) and (b) of the ALR Act.

Disciplinary sanction

The matter has been referred to the Tribunal by the Registrar because in her opinion, the seriousness of Ms Boota's alleged actions warrants the referral to the Tribunal which is conferred with higher and broader powers, to determine the appropriate disciplinary actions and orders. In addition to a reprimand, the Registrar is seeking an order under s 211A(2)(f) that Ms Boota pay a pecuniary penalty, which is an order beyond the powers conferred on the Registrar by s 181F(1) of the ALR Act.
The Registrar submitted that while the regime in the ALR Act for managing misconduct of LALC Board members is sui generis in nature, it mirrors to some extent the misconduct regime applicable to local government councillors in Chapter 14 of the Local Government Act 1993, which can be seen in the text of the Second Reading Speech for the Aboriginal Land Rights Amendment Act 2014 and the note to s 181K of the ALR Act, "cf section 440N of the Local Government Act". That legislation establishes a regime for investigation of complaints of misconduct by the Departmental Chief Executive, who may take disciplinary action as specified in s 440I, or refer the matter to the Tribunal under s 440J. The Tribunal may decide to conduct proceedings into the complaint, and, if it finds that the behaviour concerned warrants action, impose one or more of a range of disciplinary sanctions as specified in s 482A of the Local Government Act.
The Registrar submitted that the principles applied in the context of s 482A of the Local Government Act inform the present issues in dispute. Those principles were considered by PM Titterton in Office of Local Government v Neville [2018] NSWCATOD 31 at [35]-[45], and summarised in Chief Executive, Office of Local Government v Cornish [2018] NSWCATOD 110, and relevant to the present context are: 1. The jurisdiction is at least in part protective both of the public and of the maintenance of high standards in the ranks of the particular occupation; 2. Important but indirect effects of a disciplinary order include emphasising the public interest in maintenance of high standards, emphasising the unacceptability of the conduct involved, and maintaining public confidence in the standards of conduct of Board members; 3. There is a public interest in having the conduct denounced as unacceptable; 4. The necessity to consider whether remedies short of depriving the constituents of their representative can adequately punish the failure to comply with the statutory obligations and vindicate the public interest in maintaining the honesty of administration; 5. Whether the proposed orders will prevent the respondent from exercising any functions as a Board member, and the impact of this on constituents; 6. Whether there have been any previous offences; 7. Any remorse or apology for the conduct, and the lack of any insight into the conduct; and 8. The longer the experience as a Board member the greater should be the understanding and knowledge of their duties and obligations.
The Tribunal agrees with the Registrar that those principles, which reflect analogous principles applicable in professional disciplinary proceedings, inform the issues in these proceedings. The Tribunal notes that while the decision in Cornish was set aside on appeal, the statement of applicable principles was not considered or disturbed: Cornish v Secretary, Department of Planning Industry and Environment [2019] NSWSC 1134.
The Tribunal agrees that there are clear parallels between the legislation, as acknowledged in the cross references provided in ss 181K and 199A of the ALR Act, and the recognition in the Minister's Second Reading Speech on the Aboriginal Land Rights Amendment Bill 2014, that the disciplinary provisions under the ALR Act are adapted from those in the Local Government Act. Board members of a LALC, and councillors of the NSWALC, are elected to represent respectively the members of the LALC and each region of New South Wales, and as is the case for local government councillors, in addition to their representational role, play an important role in governance and financial management of their respective organisations.
The Tribunal has found that Ms Boota's conduct was "misconduct" as defined in s 181A(1) of the ALR Act. The Tribunal agrees with the Registrar that that misconduct was serious. The amount of money was substantial, and while the JNLALC was reimbursed by the CBA, it represented approximately two thirds of the annual grant of operating funds by the NSWALC to the JNLALC. Ms Boota has not repaid any of the money, and based on her evidence as to her present circumstances, there is no indication that she would have any capacity to repay such a substantial amount of money. While the Tribunal has not found that the allegation that it was Ms Boota who arranged the transfers between the JNLALC accounts and to her personal account is proven, the Tribunal is satisfied that in spending such a large amount of money over a period of less than two weeks, knowing it was not her money, and without asking questions to establish where it came from, was both reckless in the extreme and dishonest. Ms Boota was aware, as a longstanding Board member, of the responsibilities of the Board and its members.
The orders that the Tribunal may make if it finds that the conduct concerned warrants action under s 211A are specified in s 211A(2). The Registrar's application was amended after Ms Boota's conviction of an offence punishable by imprisonment for 12 months or more, which carries an automatic disqualification for 5 years under s 66(1)(c) of the ALR Act, to seek orders for a reprimand, and a pecuniary penalty in the range of $1,000 to $5,000. In closing submissions the Registrar submitted that the appropriate pecuniary penalty, in circumstances where Ms Boota did not participate in the Tribunal interlocutory processes and where the Registrar is not seeking costs, would be in the order of $2,000 to $3,000.

Whether power to make orders under s 211A in respect of former officer

It is not in dispute that in June and July 2018 Ms Boota was a Board member of the JNLALC. At the first directions hearing the Tribunal was advised that Ms Boota is no longer a Board member of the JNLALC. In oral evidence Ms Boota stated she had not resigned. It is not clear when Ms Boota ceased to be a Board member, however that would appear to be no later than September 2019, the Registrar having confirmed that Ms Boota was not voted in as a Board member at the LALC elections held then. Ms Boota is in any event, as noted above, disqualified from holding office as a Board member as a consequence of the conviction recorded on 11 October 2019.
As was the case in Registrar Aboriginal Land Rights Act 1983 v Kirk [2020] NSWCATOD 43, an issue in the proceedings is whether the Tribunal has power under s 211A of the ALR Act to impose disciplinary sanctions on a former Board member.
The Registrar acknowledged in her written submissions of 12 November 2019, which are along similar lines to those made in Kirk, that if the Tribunal does not retain the power to make orders under s 211A in respect of a former Board member, no order should be made. The Registrar submitted, however, that the Tribunal does retain that power, having regard to the text of s 211A and the context and purpose of the ALR Act; the protective purpose served by a disciplinary proceeding; the fact that under the chapeau of s 211A(2) the Tribunal is assessing "the conduct concerned of an officer" who in her capacity as a JNLALC Board member stole $95,920 of JNLALC funds; and that the theft violated important remedial and beneficial legislation, which states the objects of LALCs as being to improve protect and foster the interests of Aboriginal persons within the Council's area, and which sets out obligations of honesty, care and diligence which can only be enforced by disciplinary proceedings and not civil proceedings.
The Registrar submitted that there is nothing in the text of s 66 or elsewhere in the legislation that supports a construction that the Tribunal ceases to have power to make orders under 211A if s 66 is triggered or if a Board member ceases for any other reason to be a Board member. The Registrar submitted that such a construction could lend itself to abuse of the disciplinary regime; and that the proper focus is the utility of the order, and how it serves the protective purpose in relation to the misconduct at issue.
In Kirk I concluded that the term "officer" in s 211A does not include a former officer. The reasoning which led to that conclusion, repeated here for convenience, was as follows: Whether the power to make orders under s 211A is enlivened 68. The Tribunal's task is to interpret and to apply the provisions in the ALR Act to the circumstances of this case. In undertaking that task, the Tribunal is required to construe the ordinary and grammatical sense of the words used in s 211A, having regard to the context, which includes legislative history and extrinsic materials, and legislative purpose: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Commissioner of Taxation v Consolidated Media Holdings (2012) 250 CLR 503 at [39]. 69. In SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 Kiefel CJ, Nettle and Gordon JJ held: 14. The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. 70. In Wilson v State Rail Authority of New South Wales (2010) 78 NSWLR 704; [2010] NSWCA 198, the Court held: 12. … Context is to be understood in its widest sense to include such things as the existing state of the law and the mischief or object to which the statute was directed. These are legitimate means of understanding the purpose of the Act and of the relevant provisions, against which the terms and structure of the provisions and the Act, and a whole, are to be understood. Fundamental to the task, of course, is the giving of close attention to the text and structure of the Act, as the words used by Parliament to effect its legislative purpose. Nevertheless, general words, informed by an understanding of the context, and of the mischief to which the Act is directed, may be constrained in their effect. 71. The approach contended for by the Registrar requires the Tribunal to read the word "officer" as used in s 211A to encompass both a current and a former Board member of a LALC. There is no express reference in s 211A to a former officer, as there is in the equivalent provision under the Local Government Act in s 482A(4), inserted into that Act by the Local Government Amendment (Conduct) Act 2012 with effect from 1 March 2013. There is no reference in Part 10, or in the ALR Act in general, to former officers, or former Board members or councillors. 72. In considering whether it is permissible to read the words "an officer" as they appear in s 211A to include "a former officer", the Tribunal applies the decision of the High Court in Taylor v Owners -Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 on the implication of words in legislation. French CJ, Crennan and Bell JJ held: 37. Consistently with this Court's rejection of the adoption of rigid rules in statutory construction, it should not be accepted that purposive construction may never allow of reading a provision as if it contained additional words (or omitted words) with the effect of expanding its field of operation. As the review of the authorities in Director of Public Prosecutions (Vic) v Leys (2012) 296 ALR 96 demonstrates, it is possible to point to decisions in which courts have adopted a purposive construction having that effect. And as their Honours observed by reference to the legislation considered in Carr v Western Australia (2007) 232 CLR 138, the question of whether a construction "reads up" a provision, giving it an extended operation, or "reads down" a provision, confining its operation, may be moot. 38. The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills "gaps disclosed in legislation" or makes an insertion which is "too big, or too much at variance with the language in fact used by the legislature"(citing Leys). 39. … [T]he task remains the construction of the words the legislature has enacted. In this respect it may not be sufficient that "the modified construction is reasonably open having regard to the statutory scheme" (citing Leys) because any modified meaning must be consistent with the language in fact used by the legislature. Lord Diplock never suggested otherwise. Sometimes, as McHugh J observed in Newcastle City Council v GIO General Ltd (1997) 191 CLR 85, the language of a provision will not admit of a remedial construction. Relevant for present purposes was his Honour's further observation, "[i]f the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances". 73. While in dissent in the outcome, Gageler and Keane JJ held: 65. Statutory construction involves attribution of legal meaning to statutory text, read in context. "Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning … But not always" (citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355). Context sometimes favours an ungrammatical legal meaning. Ungrammatical legal meaning sometimes involves reading statutory text as containing implicit words. Implicit words are sometimes words of limitation. They are sometimes words of extension. But they are always words of explanation. The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair. 74. The starting point for the interpretation of s 211A is the definition of "officer" in s 4 of the ALR Act, defined to mean a Board member of a LALC, or a councillor of the NSWALC. Section 4 defines a "Board member" to mean "a member of a Board of a Local Aboriginal Land Council", and a "councillor" to mean "a member of the New South Wales Aboriginal Land Council". Those terms are used throughout the ALR Act. Both offices play a significant role in governance and management of the affairs of Aboriginal Land Councils in New South Wales in the interests of Aboriginal persons. 75. Paragraphs (a), (b), (c), (f) and (g) of s 211A(2) refer simply to "the officer". In contrast, paragraphs (d)(i), (ii) and (e) include the words "holds office as…". The Registrar submits that the inclusion of the words "holds office" in s 211A(2)(d)(i), (ii) and (e) indicates that those provisions apply only to a current Board member or councillor, and not to a person who no longer holds such an office, and that as a consequence the remaining paragraphs can be read to apply to a former officer. 76. In considering that submission, the Tribunal notes that the nature of the disciplinary sanction that may be imposed under s 211A(2)(a), (b), (f) or (g) could be applicable to either a current or a former officer. However, any support that such a reading might provide to the Registrar's contention is difficult to reconcile with s 211A(2)(c), which confers power to suspend an officer from office, which assumes that the person can be suspended from an office that they currently hold. 77. That interpretation also does not address the inconsistency between s 211A(2)(c) and (d)(i), both of which enable the Tribunal to suspend, for different periods, persons occupying the same governance roles. Section 211A(2)(c) would enable the Tribunal to suspend a Board member of a LALC or a councillor of the NSWALC for a period not exceeding 6 months. Section 211A(2)(d)(i) applies to the same people, that is, a Board member of a LALC or a councillor of the NSWALC, but enables the Tribunal to suspend such an officer for a period not exceeding 2 years. It is not clear why s 211A(2)(c) and (d)(i) enable the Tribunal to impose different periods of suspension for a Board member or a councillor. 78. A consideration of the legislative history does not lend support to the proposition that "officer" is intended to be read so as to include a former officer. 79. Before 1 July 2015 the disciplinary provisions in Divs 3A and 6 of Part 10 referred separately to "Board member" and "councillor". The term "officer" was defined in s 4 to mean: officer of an Aboriginal Land Council means a Board member or the Chairperson or Deputy Chairperson of the New South Wales Aboriginal Land Council. 80. Section 211A then read: 211A Decision of NCAT - misbehaviour matters (1) This section applies where a matter has been referred to the Civil and Administrative Tribunal under section 181K. (2) The Tribunal may, if it finds that the behaviour concerned of a councillor or Board member warrants action under this section: (a) counsel the councillor or Board member, or (b) reprimand the councillor or Board member, or (c) suspend the councillor or Board member from office for a period not exceeding 6 months, or (d) if the referral relates to a councillor who is an officer of the New South Wales Aboriginal Land Council, remove the councillor from that office, or (e) disqualify the councillor or Board member from holding office as a councillor or Board member for a period not exceeding 5 years. 81. Importing the definition of "officer" then applicable, s 211A as in force before 1 July 2015 distinguished between a councillor of the NSWALC and a Board member of a LALC on the one hand, and a councillor of the NSWALC who was an "officer" of the NSWALC as then defined, that is, was either the Chairperson or Deputy Chairperson of the NSWLALC, on the other. For the former, the Tribunal had power to counsel, reprimand, suspend for up to 6 months, or disqualify that person from holding office for up to 5 years: s 211A(2)(a), (b), (c), (e). For the latter, the powers of the Tribunal included a power to remove that person from that office: s 211A(2)(d). 82. In the Second Reading Speech on the introduction of the Aboriginal Land Rights Amendment Bill 2014 (Legislative Assembly, 21 October 2014, p 1495) the Minister for Aboriginal Affairs described the amendments to Part 10 in the following terms: As well as improving enforcement powers for the Registrar of the Aboriginal Land Rights Act, the bill introduces reforms to provide a clearer framework for managing misconduct of councillors, board members and staff of Aboriginal land councils. Part 10 of the Act currently sets out a disciplinary regime for councillors, board members and staff of Aboriginal land councils that engage in misbehaviour or breach the duty to disclose conflicts of interest. The existing system was adapted from the then disciplinary provisions of the New South Wales Local Government Act 1993, which has since undergone change. Public consultations and consultations with the network indicated that the current regime set out in part 10 is too complicated, making it easy for complaints to be made against the undeserving, and difficult to bring to account individuals whose behaviour justifies sanction. The bill updates this regime to replace the framework of "misbehaviour" with one of "misconduct", consistent with recent changes to the Local Government Act 1993, provides clearer definitions of what constitutes "misconduct" and streamlines the procedures for dealing with complaints. In order to strengthen the disciplinary framework, both the registrar and the NSW Civil and Administrative Tribunal will also be able to impose harsher penalties once misconduct has been established. 83. The amendment to the definition of "officer" and the consequential amendments to s 211A made by the Aboriginal Land Rights Amendment Act 2014 are consistent with the intended simplification of the disciplinary provisions, and the provision of increased sanctions available for misconduct. In that context, s 211A(2)(d)(ii) as currently in force retains the additional sanction that could, prior to 1 July 2015, be imposed on the Chairperson or Deputy Chairperson of the NSWALC. Section 211A(2)(f) and (g) enable the Tribunal to impose disciplinary sanctions not previously available. 84. At the time that those amendments to the disciplinary provisions in Part 10 were made, s 482A of the Local Government Act had been amended to provide in s 482A(4) that the reference to "councillor" included a former councillor. No similar provision was included in the amendments made to s 211A of the ALR Act. 85. What is not apparent from the history of the disciplinary provisions, or the scheme of the ALR Act as a whole, is any legislative intention that the sanctions available for established misconduct extend beyond those persons who are an "officer" of the relevant LALC or the NSWALC, to those who no longer hold such an office. There is no provision in the Interpretation Act 1987 that might permit such a construction. The only basis for such a reading would be if the focus remains on the "conduct concerned", which must, applying the definition of "misconduct" in s 181A, have occurred while the person occupied the relevant office. A finding as to the conduct at that time is a precondition for consideration of what is an appropriate sanction. By analogy with the principles applicable to professional disciplinary proceedings and disciplinary proceedings under the Local Government Act, that requires consideration of all the circumstances, including any remorse or contrition, at the time that any order is made. 86. The disciplinary sanctions specified in s 211A(2) encompass a range of sanctions, with potentially serious financial and reputational consequences. The maximum pecuniary penalty that may be imposed under s 211A(2)(f), is, as submitted by the Registrar, at the lower end of the range for other regulatory regimes, including those applicable to architects ($22,000), veterinarians ($25,000), health practitioners ($27,500), or legal practitioners ($100,000). However, it may still be substantial in the context of the varied circumstances of the persons who would satisfy the eligibility requirement for election to the Board of a LALC, as a member of that LALC: s 63 ALR Act. Further, as is the circumstance in these proceedings, the former officer may already have been subject to criminal penalties, including in Mr Kirk's case a compensation order. 87. The Tribunal acknowledges that confining the disciplinary sanctions available under s 211A(2) to those persons who are at the time of the Tribunal's decision a current "officer" could lend itself to abuse of the disciplinary regime. However, the meaning contended for by the Registrar would not be consistent with the language in fact used by the legislature. To read the term "officer" in s 211A as including a former officer would, in my view, go significantly further than correcting a simple drafting error; rather, would be an impermissible attempt to fill a gap in the legislation, contrary to the approach required by the High Court in Taylor v Owners Strata Plan No 11564.
On 11 March 2020 the Registrar filed in these proceedings additional written submissions on s 211A of the ALR Act, in further support of her position that the word "officer" in s 211A can extend to a person who no longer holds office. The Registrar's oral submissions at the hearing on 4 May 2020 focused on the additional written submissions, and provided a response to some of the reasoning in Kirk reproduced above.
In her additional written submissions the Registrar submitted that the focus of s 211A is the "conduct concerned of an officer" who was an officer at the time of the conduct under consideration; and to the extent that any express cognisance of an officer who no longer holds office comes into play in s 211A, it does so as a qualification on the Tribunal's power to make orders. The language used in s 211A(2)(d) and (e) makes the distinction between a current and former officer in the phrase "holds office". An officer is still an "officer" throughout s 211A whether or not they "hold office". Whether the Tribunal should make orders under s 211A, and what those orders should be, depend on what is warranted in the circumstances.
The Registrar supported those submissions by reference to the text of s 211A and the context, including extrinsic materials, purpose and legislative history.
In relation to extrinsic materials, the Registrar relied on s 34(1)(b)(i) and (ii) of the Interpretation Act 1987. Section 34(1)(b)(i) would apply in so far as the provisions relied on by the Registrar, namely s 211A(2)(b) and (f), are considered "ambiguous" in the sense that the intention of the legislature is for whatever reason doubtful. However, the intention of the legislature is not doubtful, because the objects are clear in s 51 of the ALR Act, and a disciplinary regime has been set up demarcating clear powers under s 211A to make certain orders for proven misconduct. For the Tribunal not to make orders on the basis of a construction that s 211A does not apply to a former officer could enable abuse of the Act's disciplinary system, as a Board member could escape disciplinary action by resigning or otherwise not being in place as a Board member at the time of the hearing. That construction could not have been intended by Parliament.
The Registrar submitted that s 34(1)(b)(ii) of the Interpretation Act applies to enable the Tribunal to consider extrinsic materials if it considers the ordinary meaning of "officer" does not extend to a former officer, on the basis that the ordinary meaning leads to a manifestly unreasonable construction. It would be manifestly unreasonable in the circumstances of this case given the seriousness of the theft, the breach of trust, and deliberate dishonesty, to construe the word "officer" in s 211A to not extend to a former officer.
In that regard, s 181K of the ALR Act contains a note which refers to s 440N of the Local Government Act; and the misconduct regime under the Local Government Act, linking sections 440N to 440J to 482A, shows that the regime under that Act extends "councillor" to former councillors. Further, the Second Reading Speech for the Aboriginal Land Rights Amendment Bill 2014 conveys that the misconduct provisions at issue were built on the Local Government Act, and were meant to strengthen the disciplinary framework and impose harsher penalties for misconduct.
The Registrar submitted that on a textual analysis, in terms of the text of s 211A itself: 1. The focus of any order to be made under s 211A is the "conduct concerned of an officer" at the time of the relevant misconduct; 2. The way the text deals with the contingency about being a "former officer" is through the language of "holds office" or not; 3. The term "holds office" is mentioned in several places in s 211A, and is used elsewhere in the ALR Act, relevantly at s 66 concerning disqualification; 4. The ALR Act itself imposes pre-ordained sanctions in s 66 which can apply to a former officer or to a person not yet an officer, which includes a disqualification under s 66(1)(c); and 5. While the chapeau to s 66 uses the word "person" not "officer" as in s 211A(2)(e), the logical reason for the difference is that s 66 might disqualify a person before they even become an "officer" whereas the power to sanction in s 211A only applies to someone who is an officer at the time of their misconduct, by reason of the reference to "conduct concerned of an officer".
The Registrar submitted that consideration of the entire set of sub-paras in s 211A(2) supports the contention that the Tribunal has the power to make the orders sought in these proceedings under s 211A(2)(b) and (f), for the following reasons: 1. While it is true that the present tense is used for several sub-paras, such as (b), that is immaterial as that is simply the style adopted in the section; 2. The Tribunal could make any of the orders in sub-paras (a)-(c), when in the present type of case the Registrar seeks an order of that kind coupled with the other powers which the Tribunal has but the Registrar does not, such as a pecuniary penalty under sub-para (f); 3. Contrasting sub-paras (c) and (d)(i) is illuminating. Both concern suspension, and (c) must apply to former officers while (d)(i) applies to ones "holding office"; otherwise, sub-para (c) appears to have no work to do and that cannot be correct; 4. Sub-para (e) shows that the Tribunal has a qualified discretion to disqualify officers, and where the officer does not hold office, s 66 applies; 5. The reference in the chapeau of s 211A(2) to "any one or more" conveys that if disqualification is ordered under sub-para (e), nothing would prevent the Tribunal ordering additional sanctions such as a penalty or a reprimand, where warranted; 6. There is nothing to prevent the same outcome where the disqualification happens under s 66 of the ALR Act instead of s 211A(2)(e); the question must come back to the text and purpose of the Act and the utility served by the order; 7. A disqualification under s 211A(2)(e) or s 66 is not serving an identical purpose to the sanctions of the pecuniary penalty and reprimand: a disqualification gets the Board member out of office, a specific and immediate consequence, whereas the pecuniary penalty acts as a personal and general deterrent, the public purpose being paramount; 8. Sub-para (f) concerns pecuniary penalties and uses the word "officer" with no qualification, and that provision applies to the respondent albeit she is no longer holding office because this is warranted as a matter of discretion; and 9. Sub-para (g) concerning reimbursement could apply to an officer who no longer holds office, but it is not invoked.
In oral submissions the Registrar submitted that the focus of s 211A is on the conduct of the person who was an "officer" at the time of that conduct, and after that, the issue is about the utility of any order. That focus eliminates the problem of whether a person is a current or former officer. The Registrar submitted that that interpretation of s 211A(2) is supported by the text of the provision, the purposes of the ALR Act, and the context, which includes the mischief sought to be addressed (CXXXVIII v Honourable Justice Richard Conway White [2020] FCAFC 75). Meaning should be given to every word of the legislation, and words should not be regarded as superfluous (Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at [12]; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [71]). The Registrar submitted that her interpretation is not an attempt to fill gaps in the legislation, distinguishing Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9, but gives all the words used in the legislation meaning. The history of the matter involves a referral to the Tribunal for serious cases of misconduct, related to events now almost two years ago: and while Ms Boota is no longer in office, sanctions are still necessary.
The Registrar submitted that applying s 33 of the Interpretation Act, the intention is that the disciplinary system should be used. If the application of s 211A hinges on whether a person is still in office there is the potential for misuse of the system.
The Registrar submitted that s 211A(2)(c) and (d)(i) both have work to do: s 211A(2)(c) applies to a former officer, while s 211A(2)(d)(i) applies to a current officer. In contrast to s 66 of the ALR Act, in which disqualification is automatic, s 211A(2)(c) confers a discretion. If the matter is sufficiently serious to refer to the Tribunal it is unlikely that only one remedy would be sought, and so the Tribunal could order a pecuniary penalty even if the officer is already disqualified. The text of the legislation is more important than comparison with the provisions of the Local Government Act.
Ms Boota made no submissions in reply.

Discussion and findings

The Registrar's position is that the word "officer" in s 211A(2) should be construed so as to include a former officer, so as to confer power on the Tribunal to make the orders sought under s 211A(2)(b) and (f) against Ms Boota. The Tribunal's understanding of the general principles to be applied in construing s 211A(2) is as follows: 1. The task is to construe the ordinary and grammatical sense of the words used in s 211A, having regard to the context, which includes legislative history and extrinsic materials, and legislative purpose: SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14]; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Commissioner of Taxation v Consolidated Media Holdings (2012) 250 CLR 503; 2. The legislation should be read so as to achieve an overall harmonious interpretation, as held by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (references omitted): 70. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. 1. The legislation should be construed where possible so as to give each word used a meaning, explained by the plurality in Project Blue Sky: 71.Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume ([1905] HCA 11; (1905) 2 CLR 405 at 414) Griffith CJ cited R v Berchet ([1794] EngR 1806; (1688) 1 Show KB 106 [89 ER 480]) to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent". 1. The legislation should be read as a whole to determine the issue of hierarchy and harmony between sections; and the same approach applies to the operation of expressions used in a particular section, so that "meaning and operation must be read with and accommodated to the rest of the section": Taylor v Public Service Board [1976] HCA 36; (1976) 137 CLR 208 at 213; see Pearce & Geddes, Statutory Interpretation in Australia (9th ed, 2019) at 4.3; 2. While all words used should be given some meaning and effect, there may be circumstances in which it is impossible to give a full and accurate meaning to every word, and in such circumstances the court is required to give the words the construction that produces the greatest harmony and the least inconsistency: see Pearce & Geddes at 2.43, referring to Western Australian Planning Commission v Southregal Pty Ltd (2017) 259 CLR 106; [2017] HCA 7 at [51]; Australian Alliance Assurance Co Ltd v Attorney-General (Qld) (1916) St R Qd 135 at 161; and 3. There may be circumstances in which a provision should be read as if it contained additional or omitted words, so as to expand its field of operation. Whether that is justified involves a judgment of matters of degree, which is readily answered in favour of addition or omission in the case of simple grammatical drafting errors which if left uncorrected would defeat the object of the provision. It may not be sufficient that a modified construction is reasonably open having regard to the statutory scheme, because any modified meaning must be consistent with the language in fact used by the legislature: Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 at [38]-[39].
Section 211A of the ALR Act is part of the legislative scheme in Part 10 for Conduct, Disclosure and Disciplinary matters relating to officers and staff of Aboriginal land councils, Div 3A providing for disciplinary action and proceedings, and Div 6 for proceedings in the Tribunal.
The disciplinary provisions in Part 10 of the ALR Act need to be construed in the context of the objects of the ALR Act, and those of each LALC. The purposes of the ALR Act as stated in s 3 include management of land and other assets and investments by or for Aboriginal land councils, and the objects of a LALC as stated in s 51 are to improve, protect and foster the best interests of all Aboriginal persons within the council's area.
The financial management and stewardship functions and responsibilities of each LALC, as well as the NSWALC, are important in fulfilling those objects. The ALR Act makes detailed provision for the functions and responsibilities of a LALC, including financial stewardship and management, and the prohibition in s 52D on transfer of any part of the income or property of the LALC to members of the LALC or its Board members. The proper performance of those functions and responsibilities is imposed on the members of the Board of the LALC, referred to throughout the legislation as "officer".
Part 10 Div 3A and Div 6 were inserted in the ALR Act by the Aboriginal Land Rights Amendment Act 2006 with effect from 1 July 2007, as part of a comprehensive overhaul of the legislation. In his Second Reading Speech for the Aboriginal Land Rights Amendment Bill 2006 the Minister for Aboriginal Affairs (24 October 2006, p 3280) stated: All elected LALC board members and New South Wales Aboriginal Land Council councillors will be required to undertake basic training in their particular duties and responsibilities under the Act. The functions of the registrar and the Pecuniary Interest Tribunal have been expanded to more effectively deal with misbehaviour of councillors, land council members, and council board members and staff. The amended regulatory regime is designed to emphasise fair play in the activities of Aboriginal land councils and bring Aboriginal land councils into line with the standards applied to like corporate bodies such as local government.
Before those amendments the term "officer" had been defined in s 4 of the ALR Act to mean "the Chairperson, Secretary or Treasurer" of an Aboriginal Land Council. After 1 July 2007 the term "officer" was broadened to include a Board member, the term being defined in s 4 as "a Board member or the Chairperson or Deputy Chairperson of the New South Wales Aboriginal Land Council". The powers of the Tribunal (at that time the Pecuniary Interest and Disciplinary Tribunal) were stated in s 211A(2) from 1 July 2007 in the following terms: (2) The Tribunal may, if it finds that the behaviour concerned of a councillor or Board member warrants action under this section: (a) counsel the councillor or Board member, or (b) reprimand the councillor or Board member, or (c) suspend the councillor or Board member from office for a period not exceeding 6 months, or (d) if the referral relates to a councillor who is an officer of the New South Wales Aboriginal Land Council, remove the councillor from that office, or (e) disqualify the councillor or Board member from holding office as a councillor or Board member for a period not exceeding 5 years.
Part 10 reflects the strengthening of the disciplinary framework referred to by the Minister for Aboriginal Affairs in the Second Reading Speech on the introduction of the Aboriginal Land Rights Amendment Bill 2014 (extracted at [82] in Kirk; see para [88] above), including the power to impose harsher penalties, while providing clearer definitions of what constitutes "misconduct", and streamlining the procedures for dealing with complaints. Relevantly for the present proceeding, the amendments which came into effect on 1 July 2015 included amendment of the definition of "officer" in s 4 of the ALR Act, and amendments to s 211A(2), including the addition of paragraphs (f) enabling imposition of a pecuniary penalty and (g) an order for reimbursement, and the inclusion of the words "any one or more" enabling the Tribunal to impose more than one of the sanctions available in paragraphs (a)-(g).
The Tribunal agrees with the Registrar that: 1. The power to make an order under s 211A(2) requires consideration of the conduct of the person concerned as a Board member; 2. Disqualification under s 66 of the ALR Act is distinct from disqualification under s 211A(2)(e): the former is automatic, on the occurrence of any of the matters in paragraphs (a)-(m), whereas the latter requires an order of the Tribunal, made for the protective purposes as outlined in Neville and Cornish; 3. Section 211A(2) provides a range of possible orders, and consideration of which is appropriate depends on all the circumstances including the seriousness of the misconduct and other factors such as deterrence; 4. The disciplinary sanctions in s 211A(2) enable orders to be made by the Tribunal where the circumstances of the conduct suggest that sanctions more significant than those available to the Registrar are warranted; and 5. The words "any one or more" in s 211A(2) authorise the imposition of more than one order.
The Tribunal does not agree with the Registrar that the reference to the "conduct concerned of an officer" in the chapeau to s 211A(2) supports her construction that "officer" in that section includes a former officer.
The chapeau to s 211A(2) refers to "the conduct concerned of an officer", which focusses on the conduct of that person in their capacity as an officer. The definition of "misconduct" in 181A(1), read with ss 176 and 177, requires findings as to conduct that occurred while an officer. However, the power to impose any of the sanctions listed in s211A(2) of the ALR Act in respect of that conduct will be exercised, as discussed in Neville and Cornish, by the Tribunal at the time of its decision having regard to both the past conduct the subject of the proceedings, and the present circumstances including any remorse, apology, and insight. The fact that the proceedings relate to the past conduct of a person does not compel the conclusion that it is sufficient if at the time the conduct was engaged in that that person was an officer of a LALC or the NSWALC, so as to extend the reach of disciplinary sanctions to a person who no longer occupies that position.
As noted in Kirk at [75], paragraphs (a), (b), (c), (f) and (g) of s 211A(2) refer simply to "the officer", and in contrast paragraphs (d)(i) and (ii), and (e), include the words "holds office as…" The Registrar relies on the inclusion of the term "holds office" in paragraphs (d) and (e) as indicating a legislative intention that some of the sanctions may only be imposed on a currently serving officer, while the others may be imposed on either a current or former officer. The Registrar submits that that approach enables a reconciliation of s 211A(2)(c) and s 211A(2)(d)(i), both of which enable suspension of persons occupying the same governance roles, but for different period. The Registrar submits that s 211A(2)(c) can apply to enable suspension of a former officer, while s 211A(2)(d)(i) applies to a person who "holds office" as a councillor or Board member, thus supporting the proposition that a reference to "the officer" elsewhere in the section includes a former officer.
The Tribunal does not agree that the words "holds office" resolves the inconsistency between s 211A(2)(c) and (d)(i). An interpretation of s 211A(2)(c) that enables the Tribunal to suspend a former officer faces the conceptual difficulty as to how a person who no longer serves as a Board member can be suspended from that office. The Macquarie Dictionary (online edition) defines "suspend" to include: … 5. to defer or postpone, as sentence on a convicted person. 6. to cause to cease, or bring to a stop or stay, usually for a time: to suspend payment. 7. to cause to cease for a time from operation or effect, as a law, rule, privilege, or the like. 8. to debar, usually for a time, from the exercise of an office or function or the enjoyment of a privilege: a student may be suspended for a breach of discipline. …
The only practical effect of an order to "suspend" a person who no longer holds office would appear to be by operation of s 63(2)(b) of the ALR Act, which provides (emphasis added): (2) A person is not qualified to be nominated to stand for election, or to be elected, as a Board member of a Local Aboriginal Land Council if, at the time of the nomination or election, any of the following applies to the person - (a) the person is not a voting member of the Council, (b) the person is suspended or disqualified from holding office as a Board member or is suspended from membership of the Council, (c) the person has not attended at least 2 meetings of the Council in the last 12 months.
An order under s 211A(2)(c) to suspend for a period of up to 6 months a person who is not, at the time that order is made, a current officer would mean that that person could not be nominated or elected as a Board member. The practical or protective effect of an order in those circumstances would be limited to a period shortly before the date on which nominations are called and the date of the election of Board members, and would as a consequence depend on coincidental or fortuitous timing. It is unlikely that in the four year election cycle provided by s 63(1) of the ALR Act, such a result is intended. If s 211A(2)(c) were intended to provide the Tribunal with a means to prevent a former officer from nominating or being re-elected as a Board member, in the lead up to an election, it would have been possible to say so expressly.
Rather, it may be that the inconsistency between s 211A(2)(c) and s 211A(2)(d)(i) cannot be resolved. The inconsistency appears to be a consequence of the drafting of the post 1 July 2015 amendments which changed the definition of "officer", extended the application of the more serious disciplinary sanctions beyond those persons occupying the position of Chairperson or Deputy Chairperson to all Board members and councillors, and provided the additional disciplinary sanctions now available in s 211A(2)(f) and (g).
When read as a whole paragraph (d) of s 211A(2) distinguishes between the Chairperson or Deputy Chairperson of the NSWALC, each of whom would be a councillor and thus an "officer", and those officers who are Board members or councillors. Section 211A(2)(d)(ii) thus continues the power to remove the Chairperson or Deputy Chairperson of the NSWALC from that office, which was provided before 1 July 2015 in s 211A(2)(d). Section 211A(2)(d)(i) enables the Tribunal to impose a shorter period of suspension for a Board member of a LALC, or a councillor of the NSWALC who is not occupying the office of Chairperson or Deputy Chairperson. Section 211A(2)(c) maintains the sanction of suspension for up to 6 months for a person who is a Board member or councillor which before 1 July 2015 was provided in s 211A(2)(c). Both s 211A(2)(c) and (d)(i) permit the Tribunal to order suspension, but for different periods. The more significant sanction of disqualification remains, in the form of s 211A(2)(e); and the additional sanctions of pecuniary penalty and an order for reimbursement, are now provided in s 211A(2)(f) and (g).
There is no reference in Part 10 or in the ALR Act in general to a former officer of an Aboriginal land council. The word used in s 211A(2) is "officer". The Tribunal remains of the view that there is nothing in the language of s 211A(2) that suggests that a person who no longer holds office as a Board member of a LALC can be the subject of one or more of the specified sanctions, and that to read the term "officer" in s 211A(2) as including a former officer is an impermissible attempt to fill a gap in the legislation. That conclusion is strengthened by recognition that the legislation on which the disciplinary provisions of the ALR Act are modelled, the Local Government Act, has since March 2013 provided expressly in s 482A(4) that the disciplinary sanctions that can be imposed on referral to the Tribunal apply to a former councillor.
The Tribunal acknowledges that to confine the disciplinary sanctions in s 211A(2) to those persons who are at the time of the Tribunal's decision a current "officer" could lend itself to abuse of the disciplinary regime if an officer resigns to avoid disciplinary proceedings. However an interpretation of s 211A(2) that restricts its application to a person who is, at the time of the proceedings in the Tribunal, a current Board member of a LALC would not mean that s 211A has no work to do. It would still enable the Tribunal to impose any or more of the disciplinary sanctions available, appropriate to the circumstances, for a person still serving as an officer. As well as serving appropriate protective and deterrent purposes, those sanctions may have potentially serious financial and reputational consequences, in addition to any that may have been imposed in the processes of the criminal law.
The conclusion that no order can be made against Ms Boota under s 211A(2) makes it unnecessary to consider whether an order under s 211A(2)(b) to reprimand her or under s 211A(2)(f) to impose a pecuniary penalty would be appropriate in the circumstances.

Order

The Tribunal determines to take no action in relation to the referral of the conduct of Ms Janice Christine Boota by the 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 June 2020

I, Nicole Courtman, Registrar, Aboriginal Land Rights Act 1983(NSW)

Aboriginal Land Rights Regulation 2014(NSW)

Registrar, Aboriginal Land Rights Act 1983(NSW)

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