Registrar, Aboriginal Land Rights Act 1983 v Kirk

NCAT Occupational|2020-02-26

REASONS FOR DECISION

On 20 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 Mr Douglas Kirk, a former officer of the Tamworth Local Aboriginal Land Council (the TLALC).
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: Mr Kirk allegedly used internet banking to transfer money on several occasions from the Tamworth Local Aboriginal Land Council (TLALC) bank account to his own personal bank account without authorisation from the TLALC. He achieved this alleged fraud whilst he was a Board member of the TLALC. In doing so, Mr Kirk 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 Mr Kirk'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.
On 5 March 2019, the President of the Tribunal, having considered the Report, determined under s 199A of the ALR Act to conduct proceedings into the referred matter.
For the reasons that follow, the Tribunal has determined to take no action in relation to the referral of the conduct of Mr Kirk by the Registrar.

Background

The Registrar's Report provided a summary of the facts as at the date of the referral to the Tribunal: 2.1 At all material times, Kirk was a Board member of TLALC. As a Board member of TLALC, Kirk had a duty to uphold and abide by the Code of Conduct. 2.2 At all material times, Kirk did not have authority to access or manage the TLALC business bank account, No.xxxxxx73 at Commonwealth Bank of Australia (CBA) without a co-signatory (TLALC Business Account). 2.3 In July 2018, Kirk conducted the following transactions via internet banking and transferred funds in the total sum of $68,009.00 from the TLALC Business Account into his personal bank account (bank account number ending xx8142) without authority from TLALC: Date: Amount: 4 July 2018 $67,959.00 23 July 2018 $50.00 Total $68,009.00 ("Unauthorised Transactions") … 2.4 On or about 24 July 2018, Mr Harry Cutmore, Chairperson of TLALC and Mr Kelvin Allen, NSWALC Northern Zone staff member, attended Kirk's residence and made enquiries regarding the Unauthorised Transactions. Kirk admitted receipt of the monies that had been removed from the TLALC Business Account. 2.5 On or about 24 July 2018, Mr Cutmore and Mr Allen reported the matter to NSW Tamworth Police and were provided with a report number: E68752559 (Police Report). A copy of the Police Report will be sought under summons from NSW Tamworth Police once the subject proceedings in NCAT are underway. 2.6 On or about 30 July 2018, the TLALC Board sent a letter to Kirk notifying the proposal of formal censure proceedings against him for misconduct pursuant to section 181C of the Act (Censure Letter). … 2.7 On or about 8 August 2018, a TLALC Board Meeting (TLALC Meeting) was held and the following occurred: - Kirk was present and made an admission to the transferring and spending of the TLALC funds obtained from the Unauthorised Transactions; - the TLALC Board subsequently resolved to proceed with a formal censure against Kirk for misconduct pursuant to section 181C of the Act; - Kirk tendered his resignation in writing…. - the TLALC Board subsequently accepted Kirk's resignation at the TLALC Meeting. … 2.8 On or about 31 August 2018, NSW Police Oxley Local Area Command arrested and charged Kirk on two (2) counts of obtaining financial advantage by deception. 2.9 In or between 31 August 2018 and 17 September 2018, Kirk was charged with a further two (2) counts for obtaining financial advantage by deception. 2.10 On or about 17 September 2018, Kirk appeared at Tamworth Local Court on a total of four (4) counts pertaining to obtaining financial advantage by deception. Kirk pleaded not guilty and the matter was heard at Tamworth Local Court on 18 January 2018. Three of the four charges were dropped, and Kirk pleaded guilty to the remaining charge. The matter is listed for sentencing on 7 March 2019 at Tamworth Local Court. 2.11 Following these actions, the Commonwealth Bank of Australia reimbursed the TLALC for the full amount Kirk transferred, thereby covering the Land Council for the loss incurred.
On 8 May 2019 Mr Kirk was sentenced to serve an Intensive Corrections Order for 18 months, and ordered to pay compensation to the Commonwealth Bank of Australia (CBA) of $68,009.00.
In the original Application the Registrar sought orders under s 211A of the ALR Act that Mr Kirk be disqualified from holding office in any Aboriginal Land Council for a period of up to five years, and that he pay a pecuniary penalty of $11,000.
As a consequence of the conviction on the charge under s 188(1) of the Crimes Act 1900 of receiving and disposing of stolen property, Mr Kirk is by operation of s 66(1)(c) of the ALR Act disqualified from holding office as a Board member of a LALC for five years.
In the amended Application the Registrar seeks orders that Mr Kirk be reprimanded, and that he pay a pecuniary penalty. The Registrar does not seek costs.

Tribunal proceedings

The matter was listed for directions on 29 March 2019. Mr Kirk did not appear on that occasion, and the matter was adjourned. At the adjourned directions hearing on 21 June 2019, at which Mr Kirk did not appear, directions were made for the Registrar to provide to the Tribunal and to Mr Kirk any amended application, and to provide to the Tribunal an affidavit of service.
On 2 August 2019 the Registrar filed an Amended Report. On 16 August 2019 the Registrar filed an Affidavit of Service sworn 15 August 2019 for service of the Amended Report, and an Affidavit of Service sworn 14 August 2019 for service of a copy of the letter dated 7 August 2019 notifying Mr Kirk of the directions hearing listed for 16 August 2019, both by registered post, with delivery confirmed on 8 August 2019 and 12 August 2019 respectively.
On 16 August 2019 there was no appearance by Mr Kirk. The proceedings were listed for an undefended hearing on 31 October 2019, and leave was granted to Mr Kirk to seek to set aside or vary the orders made.
The Registrar filed an amended Application and Amended Report on 21 October 2019, relevantly amending the orders sought from the Tribunal. An affidavit of service sworn 22 October 2019 confirms that a copy of the amended application and the amended report were personally served on Mr Kirk on 22 October 2019.
There was no appearance by Mr Kirk on 31 October 2019. The Registrar advised the Tribunal that there had been issues with service of documents including the Registrar's bundle of documents and submissions. The matter was adjourned to 23 December 2019, with directions for the Registrar to provide copies of the application and supporting documents to Mr Kirk, for Mr Kirk to provide to the Tribunal and to the Registrar any evidence and submissions on which he intended to rely, and for the Registrar to provide any material in reply.
On 23 December 2019 the Tribunal was able to contact Mr Kirk by telephone. Mr Kirk confirmed he had received the documents from the Registrar, and said that he would prepare a written statement in response. The hearing was adjourned to 26 February 2020, with an extension of time for Mr Kirk to provide any evidence and submissions, including submissions in response to further submissions provided by the Registrar.
There was no appearance by Mr Kirk at the adjourned hearing on 26 February 2020. Mr Kirk has provided no documents to the Tribunal or to the Registrar in response to the application. The Tribunal proceeded with the hearing, at the conclusion of which the decision was reserved.

Hearing in the absence of Mr Kirk

The Tribunal file confirms that notices of the directions hearings on 29 March 2019, 21 June 2019, and 16 August 2019, and notices of the hearings listed on 31 October 2019, 23 December 2019 and 26 February 2020 were sent to Mr Kirk at the residential address which he confirmed on 23 December 2019 is the correct address. Mr Kirk confirmed on 23 December 2019 that he has received the amended application and supporting documents and written submissions from the Registrar.
No evidence or written submissions have been received from Mr Kirk, either in response to directions made on 31 October 2019 and 23 December 2019, or as stated by telephone on 23 December 2019.
At the hearing on 26 February 2020 the Tribunal attempted to reach Mr Kirk by telephone, including leaving a message for him to contact the Tribunal urgently. Mr Kirk did not respond. The Registrar submitted that the Tribunal could and should proceed in his absence, submitting that Mr Kirk has had a reasonable opportunity to participate in the proceedings, and that to delay further would not be consistent with the guiding principle in s 36(1) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act).
There is no specific provision in the NCAT Act or the procedural rules for hearing in the absence of a party in proceedings under the ALR Act. Section 199B of the ALR Act enables the Tribunal to dispense with a hearing in determining proceedings relating to a report presented under s 181K of the ALR Act if the Registrar and the person to whom the report relates have agreed that the proceedings may be determined without a hearing, and there are no material facts in dispute, and in the opinion of the Tribunal public interest considerations do not require a hearing. That provision does not apply in the present circumstances.
The guiding principle for the NCAT Act and the procedural rules, in their application to proceedings in the Tribunal, is stated in s 36(1) of the NCAT Act to be to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Subsection 36(4) provides that the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject matter of the proceedings.
Section 38 of the NCAT Act provides for the procedure of the Tribunal generally. Section 38(1) enables the Tribunal to determine its own procedure in relation to any matter in which that Act or the procedural rules do not otherwise make provision. Subsection (5) provides: (5) The Tribunal is to take such measures as are reasonably practicable - (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and (b) if requested to do so - to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.
Section 38 reflects and reinforces the common law requirements of procedural fairness. The Tribunal is required to provide a reasonable opportunity for Mr Kirk to respond to serious allegations of misconduct, in disciplinary proceedings in which the Registrar is seeking the imposition of significant penalties. I am confident that Mr Kirk has had that opportunity. I am satisfied, based on the affidavits of service, and Mr Kirk's verbal confirmation on 23 December 2019, that he has received all the documents served by the Registrar, and that he has been made aware of all the relevant material. He has not appeared at any of the directions hearings held, or provided any evidence or submissions in response to the substantial material provided in the Registrar's Report, the amended Application which states the orders sought by the Registrar, and the written submissions in which the relevant legal principles are discussed. Mindful of the guiding principle, and in the context of the repeated opportunities provided to Mr Kirk to engage in the proceedings, the Tribunal determined that the hearing should proceed in the absence of Mr Kirk.

Evidence before the Tribunal

The applicant relies on a bundle of documents (ex A1) 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; the NSWALC Funding Agreement; and communications between the Project Officer Governance of the NSWALC and Tamworth Local Court.
The NSW Police documents include the NSW Police Force Brief of Evidence, which includes a transcript of an interview between Mr Kirk and Detective Senior Constable Goodwin on 8 October 2018, the Facts Sheet, statements by Fiona Snape (CEO of TLALC), Harry Cutmore (Chairperson of TLALC), and Kelvin Allen (Senior Project Officer NSWALC), a copy of Mr Kirk's criminal record, and CBA records.
Mr Kirk did not provide any documents or evidence in reply.
The Tribunal is not bound by the rules of evidence in these proceedings. The standard of proof is the civil standard on the balance of probabilities. Due to the seriousness of the allegations and the penalties sought, 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 is the first matter referred to the Tribunal under Part 10 of the ALR Act. In order to explain the reasons for the conclusion that I have reached on the interpretation of s 211A of the ALR Act, some detail as to the governance and disciplinary provisions of the ALR Act is provided.

Aboriginal Land Councils

The purposes of the ALR Act are provided in s 3: 3 Purpose of Act The purposes of this Act are as follows - (a) to provide land rights for Aboriginal persons in New South Wales, (b) to provide for representative Aboriginal Land Councils in New South Wales, (c) to vest land in those Councils, (d) to provide for the acquisition of land, and the management of land and other assets and investments, by or for those Councils and the allocation of funds to and by those Councils, (e) to provide for the provision of community benefit schemes by or on behalf of those Councils.
The ALR Act established Aboriginal Land Councils, part of whose function is to hold lands vested for the benefit of Aboriginal people under the provisions of Part 2 of the ALR Act for land claims. A Local Aboriginal Land Council (LALC) is established for each Local Aboriginal Land Council area, with the object "… 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. Section 52D provides that 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.
Part 5 Div 3 of the ALR Act provides for a Board of each LALC, 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 in relation to the matters prescribed by the regulations, to be provided not later than 6 months after the date of election of a Board member. Reg 30 of the Aboriginal Land Rights Regulation 2014 (the Regulation) specifies that the training is to relate to the operation of LALCs, the Act and this Regulation, including training relating to the principles of governance applicable to Councils, and to the provisions of the ALR Act and the Regulation relating to misbehaviour and the role and functions of the Tribunal under the ALR Act.
Part 7 of the ALR Act provides for the New South Wales Aboriginal Land Council (the NSWALC). The NSWALC is a body corporate, consisting of an Aboriginal councillor elected for each Region: s 120. The role of the councillors 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). The Chairperson and Deputy Chairperson of the NSWALC are elected by the councillors of the NSWALC: s 129(1).
The functions of the New South Wales Aboriginal Land Council 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 (s 106(8)(e)), including by means of a funding agreement subject to conditions: s 162 ALR Act.

Conduct and disciplinary proceedings

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.
The term "officer" is defined in s 4 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.
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. A model code of conduct, issued by the Registrar pursuant to s 177(4) of the ALR Act, is provided in Sch 3 of the Regulation. That code of conduct 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. Grounds for disciplinary action against an officer include that the officer has engaged in misconduct of a sufficiently serious nature as to justify the taking of disciplinary action: s 181B(b). 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 of an Aboriginal Land Council 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 against a person on the Registrar's own initiative: s 181D(4).
The Registrar's power to investigate matters in relation to alleged misconduct is provided for in s 181E of the ALR Act: 181E Registrar to investigate misconduct (1) The Registrar is to conduct an investigation, or authorise an investigator to conduct an investigation, and prepare a report, into matters raised by or connected with disciplinary proceedings initiated under this Division. Note. Section 216 provides for the appointment of investigators by the Registrar. (2) However, the Registrar may decide not to conduct an investigation or decide to terminate an investigation or to take no further action in relation to alleged misconduct, if the Registrar is satisfied of one or more of the following - (a) the complaint or allegation initiating the disciplinary proceedings was not made in good faith, (b) the alleged misconduct is trivial or does not warrant investigation or further investigation, (c) the alleged misconduct has been investigated by another authority or is the subject of other proceedings under this Act or any other Act, (d) the alleged misconduct should be referred to another authority for investigation or it is not appropriate that the Registrar investigate the alleged misconduct, (e) the alleged misconduct should not be the subject of disciplinary action under this Division or that no further action is warranted, (f) the alleged misconduct occurred more than 2 years before the complaint or allegation was made and the Registrar is not satisfied as to the reasons for the delay in making the complaint or allegation, (g) there are insufficient particulars provided in connection with the alleged misconduct to allow the Registrar to investigate the alleged misconduct, (h) the person making the complaint or allegation has not responded to a request for further information within the time specified by the Registrar. (3) Whether the Registrar decides to or not to conduct an investigation, or to take no further action, in relation to alleged misconduct, the Registrar is to prepare a statement of reasons for that decision. (4) The Registrar may, at any time after commencing an investigation, decide to terminate the investigation and take no further action in respect of the alleged misconduct on the grounds referred to in subsection (2). (5) The Registrar must, as soon as practicable after making a decision under this section, notify the following of that decision - (a) the officer or member of staff concerned, (b) in the case of a complaint or allegation made by an Aboriginal Land Council, the Board of a Local Aboriginal Land Council, a member of an Aboriginal Land Council or any other person - the person who made the complaint or allegation.
The disciplinary action that may be taken by the Registrar is specified in s 181F: 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. (2) The Registrar must not take disciplinary action against an officer or member of staff of an Aboriginal Land Council under this section unless - (a) the matter has been investigated under this Division, or (b) the Registrar is satisfied, on the basis of a report by the Independent Commission Against Corruption or the Ombudsman (other than a report referred to in section 181K), that disciplinary action should be taken against the officer or member of staff. Note. Section 181K provides that the Registrar must not take disciplinary action against an officer or member of staff of an Aboriginal Land Council on the basis of a report by the Independent Commission Against Corruption or the Ombudsman recommending that disciplinary action be taken. In such cases the matter must be referred to the Civil and Administrative Tribunal. (3) If the Registrar decides to take disciplinary action against an officer or member of staff of an Aboriginal Land Council under this section, the Registrar is to prepare a statement of reasons for that decision. (4) Notice of the decision and a copy of the statement of reasons for the decision is to be served on the officer or member of staff concerned. (5) If the Registrar decides to suspend an officer, the notice must specify the period of suspension (not more than 6 months) and the date on which the suspension commences (not less than 7 days after the date the notice is served on the officer).
Referral of alleged misconduct to the Tribunal is provided for in s 181K of the ALR Act: 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.
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.
As part of those amendments, the definition of "officer" in s 4 was amended. That term was previously defined: officer, in relation to an Aboriginal Land Council, means the Chairperson, Secretary or Treasurer of the Council.
After 1 July 2007, the following definition applied: officer of an Aboriginal Land Council means a Board member or the Chairperson or Deputy Chairperson of the New South Wales Aboriginal Land Council.
As originally enacted, s 211A provided for referral of matters relating to misbehaviour of a councillor or Board member or a member of staff to the Pecuniary Interest and Disciplinary Tribunal, and conferred the following powers on that Tribunal for matters involving a councillor or Board member: 211A Decision of Pecuniary Interest and Disciplinary Tribunal - misbehaviour matters (1) This section applies where a matter has been referred to the Pecuniary Interest and Disciplinary 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. …
The Civil and Administrative Legislation (Repeal and Amendment) Act 2013 transferred the jurisdiction formerly exercised by the Pecuniary Interest and Disciplinary Tribunal to this Tribunal with effect from 1 January 2014. From that date, until the amendments made by the Aboriginal Land Rights Amendment Act 2014 came into effect on 1 July 2015, s 211A provided in relation to matters concerning a councillor or Board member: 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. …

Mr Kirk's Conduct

In her witness statement of 20 August 2018 (ex A1, pp 87-90) Ms Fiona Snape, CEO of TLALC since 2009, stated: 1. The Board of the TLALC has 10 Aboriginal community members and employs a CEO and six other staff; 2. The TLALC operates multiple accounts with the CBA. Three Board members have authorisation to access the funds kept by the TLALC, those persons being Harry Cutmore (Chairperson), Yvonne Kent (Deputy Chair), and until his resignation as a Board member, Mr Kirk. Three staff members can access the account, including herself. Any access to the TLALC funds requires two signatories to withdraw or use any of the funds. The only people who could access the funds electronically were herself and two staff members and Ms Kent, for administrative purposes; 3. The TLALC has 15 rental properties in Tamworth. Before 1 July 2018 Homes North operated the Trust Fund set up to manage those properties. As of 1 July 2018 a new account was set up for Ray White to manage the properties. As a result Homes North transferred $67,959.39 to a new CBA bank account set up for that purpose, the transfer taking place on 2 July 2018. On 4 July 2018 $67,959 was transferred out of that account into another private account via a Commonwealth Bank App. On 20 July 2018 a tenant in one of the TLALC's houses deposited $50 into the new CBA account. On 23 July 2018 $50 was transferred out of the account. Both transfers were to the private account of Mr Kirk; 4. The transfer of funds out of the account was identified at the end of July 2018 by a staff member who was checking the accounts. That person put a stop on the account and reported the access to Mr Cutmore and Ms Kent; 5. The Board held an extraordinary meeting on 30 July 2018. At that meeting Mr Kirk was removed as a signatory to the CBA account and a "show cause" letter was forwarded to him; 6. Mr Kirk attended a Board meeting on 8 August 2018, at which he stated that he did not know the funds were TLALC funds; he thought the money was from work he had done for Native Title Services in the St George area; and he stated he had told family members he had won Keno. Mr Kirk was asked to resign and he agreed to do so. After the meeting he sent Ms Snape a text message apologising for his actions; 7. The CBA has since reimbursed the $68,009 to the TLALC account, and stated that when first setting up the account it was not locked via the two signatories, which is what allowed Mr Kirk to access the funds electronically; 8. At no time did Mr Kirk have authority to access the funds for his own personal use.
In his statement to NSW Police dated 8 October 2018 (ex A1, pp 111-112) Mr Cutmore stated that after he was approached by a staff member on 26 July 2018 in respect of anomalies she had found in one of the CBA accounts, he spoke to Ms Kent and to Mr Allen, a Project Officer with the Northern Region of the NSWALC. He and Mr Allen went to Mr Kirk's house and spoke to him. In that conversation Mr Kirk stated that there was only about $3,000 left and he did not have any money he could replace it with. He tried to find out from the bank what it was doing there and who owned it and they would not tell him; he thought it was from some Native Title work he had done up near St George.
In his statement to NSW Police dated 20 August 2018 (ex A1, pp 113-115) Mr Allen confirmed the matters recorded in Mr Cutmore's statement, although he recorded Mr Kirk as saying that he had spent all of the money bar approximately $2,000.

Findings

The Tribunal has not had the benefit of any evidence or submission by or on behalf of Mr Kirk. The following findings of fact are based on the documents contained in the Brief of Evidence: 1. Mr Kirk was, as at July 2018, a Board member of the TLALC. He had been a Board member for at least three years, based on Mr Cutmore's statement (ex A1, p 111), or possibly longer, based on Ms Snape's statement (ex A1, p 88); 2. Mr Kirk completed a course of mandatory Governance Training on 24 April 2016, and a Finance and Budgeting Workshop for Board members on 26 February 2016, based on the certificates annexed to Ms Snape's statement (ex A1, pp 106, 107); 3. Mr Kirk resigned as a Board member of TLALC on 8 August 2018 (ex A1, p 104); 4. On 8 August 2018 Mr Kirk sent a text message addressed to Ms Snape, Mr Cutmore, Mr Allen, and board members, stating: I am sorry for my actions in the las couple of weeks I didn't know it was LALC money sorry for bringing LALC into trouble since my time there I have made many friends and I hope to continue with you guys in the future again I say I am sorry thank you for your time and understanding of this matter 1. $67,959.39 was transferred into the TLALC account number xx7673 on 2 July 2018; $67,959 was transferred from that account to account xx8142 on 4 July 2018; a cash deposit of $50 was made on 20 July 2018, and $50 was transferred from that account to account xx8142 on 23 July 2018 (ex A1, p 125); 2. Based on the CBA bank records for Mr Kirk's account xx8142, $67,959.00 was transferred into his account from account xx7673 by CommBank app on 4 July 2018, and there were withdrawals from that account of amounts of $1,000 or $2,000 by ATM between 5-17 July 2018; amounts of $10,000 at a branch on four occasions in July 2018; various smaller payments by Paypal or to retailers between 17 to 31 July 2018. The amount of $50 was transferred from xx7673 on 23 July 2018. The account had a minimal balance as at 2 July 2018, and at 31 July 2018 (ex A1, pp 119-124); 3. Mr Kirk was able to access the funds in the CBA account xx7673 electronically, and without the required co-signatory, due to administrative error by the bank in establishing the new account; 4. Mr Kirk's explanation to the TLALC Board on 8 August 2018 as to the removal of the funds, namely that he did not know it was Land Council money and he thought it was for work done for the Native Title Group in the St George area, was contradicted by a statement by Timothy Wishart (27 August 2018, ex A1 pp 126-127), Principal Legal Officer of the Queensland South Native Title Services Ltd, who stated that that service had not made any payment to Mr Kirk or the TLALC for any activity related to native title or at all, and there were no matters known to the service within the claim area of the Gamilaraay Peoples native title claim group, of which Mr Kirk was a part; 5. Mr Kirk pleaded guilty to the charge under s 188(1) of the Crimes Act 1900, and was sentenced on 8 May 2019 to an Intensive Corrections Order for 18 months, with a Compensation order made for the amount of $68,009 to be paid to the CBA (ex A1, p 226); 6. As a consequence of his conviction for the offence under s 188(1) of the Crimes Act, which carries a maximum penalty of imprisonment of 10 years, Mr Kirk is disqualified from holding office as a Board member of a LALC for 5 years, by operation of s 66(1)(c) of the ALR Act.

Whether Mr Kirk's conduct was "misconduct"

The Registrar submits that Mr Kirk's conduct contravened s 176(a)-(d) of the ALR Act and at least provisions 1 - 7 of the Code of Conduct. The Registrar submits that: 1. Mr Kirk admitted his conduct which amounted to the theft of $68,009 of the TLALC's funds both to Tamworth Police, and to the individual and collective members of the TLALC Board on multiple occasions; 2. His theft of the TLALC funds was deliberately dishonest, in that he: 1. Withdrew the funds on numerous occasions during July 2018, 2. Gave contradictory and untruthful explanations as to how he obtained the funds, and 3. Made large withdrawals on 30 and 26 July 2018, the 30 July withdrawal being after he was confronted as to his theft on 26 July 2018; 1. The scale of the wrongdoing is large in terms of its size and nature, because: 1. The stolen funds were meant to be used for the purposes of TLALC's work in improving, protecting and fostering the best interests of all Aboriginal persons in the area, and 2. The theft of $68,009 constitutes just under half of the annual funding grant from the MSW Aboriginal Land Council, 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: 1. Mr Kirk had at least 4-7 years' experience as a TLALC Board member, 2. He had completed Governance training, and a further course in May 2026, and a Finance and Budgeting Workshop for Board members on 26 February 2015, and 3. He had attended Board meetings where projects, budget and operating budgets are discussed.
The Tribunal is satisfied that Mr Kirk, as a Board member of TLALC, had access to the bank accounts of the TLALC in the circumstances as described in Ms Snape's statements. Based on the documents in evidence, he transferred $68,009 from the TLALC's account to his private account on 4 and 23 July 2018, and he withdrew those funds during the period 5-31 July 2018 for his own purposes, and not for any purpose relating to his functions as a Board member of the TLALC. The Tribunal is satisfied that that conduct was in breach of his obligation as a Board member of TLALC under s 176(c) not to use his office for personal advantage.
The amounts transferred came from funds held on trust for the management of the residential property owned by the TLALC. That amount was significant, including having regard to the $145,740 annual grant by the NSWALC under s 106(8)(e) of the ALR Act to the TLALC for the payment of its operational costs and expenses for the year 2017/2018 (ex A1, p 187). While Mr Kirk was able to access the funds electronically because of an administrative error by the CBA, and the CBA has compensated the TLALC, having regard to the scale of the misappropriation in the context of the overall budget and operations of the TLALC the Tribunal is satisfied that Mr Kirk used his office, which included access to the TLALC's accounts, to the detriment of the TLALC, and thus contravened s 176(1)(d) of the ALR Act.
The Tribunal is satisfied that Mr Kirk failed to observe "the highest standards of conduct and ethical behaviour" as required by cl 1 of the code of conduct; engaged in conduct that would detract from the reputation of the TLALC (cl 4); breached his obligation to exercise "complete probity, honesty and diligence" (cl 5), and engaged in conduct that conflicted with the interests of the TLALC (cl 7).
The Tribunal concludes that Mr Kirk's conduct constitutes "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 Mr Kirk'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.
Appropriate implementation of the disciplinary provisions of the ALR Act was the subject of comment by the Independent Commission Against Corruption in its Report on Governance and Regulation in the NSW Aboriginal Land Council Network (May 2017), in which it stated (at p23): The Commission has been informed by LALCs that the disciplinary provisions of the ALRA are rarely ever used and, to date, there has not been a referral of a disciplinary matter by the Registrar to NCAT. Several stakeholders remarked to the Commission that the lack of any such action for misconduct sends a message that there are no significant personal consequences for this kind of behaviour. This means that, if board members believe there are no consequences and certainly no personal consequences for the breach of their duties, they may not be sufficiently motivated to carry out duties faithfully. … If the duties of LALC board members under the ALRA are enforced, board members are likely to be more motivated to exercise them with due care and diligence and act for a proper purpose when undertaking their roles. While the imposition of sanctions on board members should be seen as a last resort in promoting good governance standards, it is important that there are real consequences for the failure of board members to undertake their duties properly.
The disciplinary provisions of the ALR Act are analogous to those applicable to local government councillors under Chapter 14 of the Local Government Act 1993. 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: 482A Decision of NCAT - misconduct matters (1) This section applies where a matter has been referred to the Civil and Administrative Tribunal under section 438HA or 440J. (2) The Tribunal may, if it finds that the behaviour concerned warrants action under this section - (a) counsel the councillor, or (b) reprimand the councillor, or (c) suspend the councillor from civic office for a period not exceeding 6 months, or (c1) disqualify the councillor from holding civic office for a period not exceeding 5 years, or (d) suspend the councillor's right to be paid any fee or other remuneration, to which the councillor would otherwise be entitled as the holder of the civic office, in respect of a period not exceeding 6 months (without suspending the councillor from civic office for that period). (3) In determining which action, if any, to take against a councillor, the Tribunal may take into account any previous incidents of misconduct by the councillor, any disciplinary action previously taken against the councillor and any other relevant matters. (4) In this section, councillor includes a former councillor.
The relevant principles in the context of s 482A of the Local Government Act 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. Those principles 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 and maintain public confidence in standards of conduct; 3. There is a public interest in having the conduct denounced as unacceptable; 4. The necessity to consider whether a sanction 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 council administration; 5. Whether the proposed orders will prevent the respondent from exercising any functions as a councillor, and the impact of this on constituents; 6. Whether there have been any previous offences or complaints; 7. Any remorse or apology for the conduct, and the lack of any insight into the conduct; and 8. The longer the experience as councillor the greater should be the councillor's understanding and knowledge of their duties and obligations.
The disciplinary provisions of the ALR Act are, as recognised by the Minister for Aboriginal Affairs in the Second Reading Speech on the Aboriginal Land Rights Amendment Bill 2014, adapted from the disciplinary provisions in the Local Government Act. There are clear parallels to that legislation, as acknowledged in the cross references provided in ss 181K and 199A of the ALR Act. The Tribunal agrees with the Registrar that the principles discussed in Neville and Cornish, which reflect analogous principles applicable in professional disciplinary proceedings, inform the issues in these proceedings.
The Tribunal has found that Mr Kirk'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 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 submits that in circumstances where it is no longer appropriate to seek a disqualification order given the operation of s 66 of the ALR Act, the Tribunal should order a public reprimand of Mr Kirk which denounces his conduct as unacceptable, and should impose a pecuniary penalty in the range of $1,000 to $5,000.
The first question to consider is whether the power in 211A of the ALR Act is enlivened in the present circumstances. Mr Kirk was, at the time the conduct occurred, a Board member of TLALC and thus an "officer" as defined in s 4 of the ALR Act. He is no longer an "officer", having resigned on 8 August 2018, and having since been disqualified from holding office for 5 years as a consequence of his conviction for the offence under s 188(1) of the Crimes Act.
The Registrar submits that the power is enlivened, bearing in mind the text of s 211A and having regard to the context and purpose of the ALR Act. The present inquiry imports the considerations and application of the protective purpose served by the disciplinary proceeding: Law Society v Walsh [1997] NSWCA 185; Office of Local Government v Councillor Campbell of Murray Shire Council [2015] NSWCATOD 129. Mr Kirk's conduct violated important remedial and beneficial legislation, as confirmed in the statement of the objects of LALCs set out in s 51 of the ALR Act. The obligations of honesty, care and diligence imposed by s 176 on LALC Board members cannot be enforced by civil actions, and can only be enforced by disciplinary proceedings. The Registrar submits 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 s 211A if s 66 is triggered or if a Board member ceases to be a Board member for some other reasons, such as by resigning. Such a construction could lend itself to abuse of the disciplinary regime.

Whether the power to make orders under s 211A is enlivened

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].
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.
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.
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.
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".
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.
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.
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.
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.
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.
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
The conclusion that no order can be made against Mr Kirk under s 211A(2) means it is not necessary to address whether, had the provisions of s 211A(2)(b) and (f) been available, the Tribunal would have reprimanded him or ordered him to pay a pecuniary penalty, and if so, in what amount.

Order

The Tribunal determines to take no action in relation to the referral of the conduct of Douglas Frederick Kirk 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: 29 April 2020

Aboriginal Land Rights Amendment Act 2006(NSW)

Aboriginal Land Rights Amendment Act 2014(NSW)

Aboriginal Land Rights Regulation 2014(NSW)

Civil and Administrative Legislation (Repeal and Amendment) Act 2013(NSW)

Local Government Amendment (Conduct) Act 2012(NSW)

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