Secretary to the Department of Planning and Community Development v Muto (Occupational and Business Regulation) [2012] VCAT 1986

Pursuant to section 29(4) of the Local Government Act 1989, the Tribunal orders that the respondent take leave of absence from his office as Councillor of the Shepparton City Council until proceedings in respect of the charge of blackmail against him are finally determined or this order ceases to have effect in accordance with section 29(6) of the Local Government Act 1989.

1. The Secretary of the Department of Planning and Community Development has made an application under section 29(4) of the Local Government Act 1989 for orders that the respondent Councillor Muto, a Councillor of the City of Shepparton, take a leave of absence.
2. Section 29 of the Local Government Act 1989 provides as follows:

(4) If a Councillor is charged with an offence referred to in subsection (2), the Secretary may apply to VCAT for an order requiring the Councillor to take leave of absence from the office of Councillor until the proceedings in respect of the charge are finally determined.

(5) Before VCAT makes an order under subsection (4), VCAT must have regard to the nature and circumstances of the charge.

1. The Secretary who is the applicant in this proceeding is the Secretary as defined in the Local Government Act 1989.
2. Ss (2) of s 29 of the Local Government Act refers inter alia to offences under law of Victoria or the law of any other State or Territory of the Commonwealth of Australia or the law of the Commonwealth of Australia punishable upon first conviction for a term of imprisonment of 5 years or more.
3. Councillor Muto, earlier this month, was charged with the offence of blackmail, contrary to section 87 of the Crimes Act 1958. That offence carries with it a maximum penalty of imprisonment for 15 years and is therefore an offence referred to in ss2 and the existence of the charge provides a basis on which the present application could be launched.
4. At the outset of the hearing today, Mr Gibson who appears for Councillor Muto sought directions excluding from evidence a large part of the 38 paragraph affidavit by the Secretary and the exclusion of a large number of the exhibits referred to therein based on grounds of irrelevancy and prejudice.
5. For reasons which I gave in a ruling earlier today, I did not accede to these objections. I felt that there were substantial sections of the affidavit which were more appropriately for submission than for inclusion in an affidavit. However, since those matters were in my view, matters proper to be placed before the Tribunal, I did not take the step of striking them out.
6. I declined however to accede to the attack on relevancy and the suggestion of prejudice as to the other portions which relate generally to other charges and other matters in Councillor Muto's life as a Councillor. I gave the reasons for my ruling and I need not repeat them now. It is necessary however, for the purposes of my final determination, to note that for the reasons then given, I took the view that whilst the Tribunal was obliged to have regard to the nature and circumstances of the charge, those matters were not the only matters which it was appropriate for the Tribunal to consider.
7. In my ruling I determined that the other matters referred to by the Secretary in his affidavit were matters proper for consideration.
8. Looking for a moment at the nature and circumstances of the charge of blackmail, the person allegedly blackmailed was Ms Saloman who was a senior officer of Shepparton City Council. Ms Saloman is also complainant in a series of matters which are listed for hearing at the Tribunal next week, in which Councillor Muto is respondent. Findings are being sought that Mr Muto engaged in misconduct or gross misconduct in the course of his functions as Councillor.
9. In addition, there are some two other offences alleged relative to an audio disk. According to the allegation, the audio disk was part of the blackmail threat.
10. There were further allegations as to unlawful possession of firearms and cannabis. In all the circumstances, given that all these other matters are unproven and do not carry the maximum penalty which would render them relevant for the purposes of section 29 of the Local Government Act ss (2) and (4), I believe I should put them to one side and give no account to them at all. The other charges relative to the audio disk are in my view clearly amongst the circumstances attending the charge of blackmail.
11. Certainly, a person in Councillor Muto's position, respondent to an application such as the present, could very well put on a case which said in effect, 'I deny the charge that is brought against me, I have had a blameless life in local government. Even if these charges were, contrary to my denials, found against me, they would represent an aberration as far as my conduct in public life is concerned'. Without expressing a view as to whether such arguments in the hypothetical case would necessarily be successful, they would clearly be compelling arguments. Here, the Secretary says that we find the obverse situation. The Councillor is the subject of the further allegations of conduct and misconduct which are fixed for hearing in the Tribunal next week, and he has already been the subject of findings of misconduct as a result of what was in effect a plea bargain with penalties including a reprimand imposed by Ross J, formerly the President of this Tribunal.
12. These matters were the subject of admission, so it is not merely the matter of a previous Tribunal having formed a particular opinion which is not binding upon me. The admissions in the earlier proceedings are admissions in this proceeding as well and they indicate that Councillor Muto does not come to the Tribunal today as someone with a spotless record in his career in local government. There is the further consideration that what is alleged here goes to the very heart of his performance as Councillor. It is alleged that he has blackmailed a senior executive of the Council. This is not a situation where a serious matter is alleged against him entirely unrelated to his local government activities.
13. Mr Gibson on behalf of Mr Muto has stressed the grave consequences for the Councillor if orders I made under section 29(4). The elections for council are imminent. The making of the order sought would not preclude Councillor Muto from standing for re-election to Council. However, it might conceivably, ultimately disqualify him if re-elected because the definition of `leave of absence' in section 66 of the Local Government Act 1989 extends to the performance of functions as Councillor.
14. Other provisions in the Act render vacant the seat of a Councillor elected who does not within 3 months take the oath of office. If a leave of absence precludes a Councillor from taking the oath of office then, even if the Councillor were re-elected, if an order along these lines were in force, his office might be vacated. Again, the charge of blackmail will be prosecuted on indictment. It will be heard before a judge and jury either in the Supreme or County Court, most likely in the County Court. The delays in bringing on trials on indictment in this State are well known. Even on the most optimistic view a trial would not take place, assuming these charges are not withdrawn or made the subject of some kind of plea bargain, until well into next year.
15. It follows, therefore, that, if I make the orders which are sought, it could be fatal to the career of the Councillor in local government. On the other hand, the nature of an order under s29(4) is that it can only be made in relation to a serious offence which will be prosecuted on indictment and made the subject of a trial before a judge and jury in the Supreme or County Court. Therefore, Parliament must be supposed to have intended in appropriate circumstances, the very unfortunate consequences which may flow from success in an application such as the present.
16. This application confronts the Tribunal with the tension between two very important principles. One principle is the need for there to be public confidence in the operation of local government. Councillor Muto is at present on bail. There must be at least some question whether the public can have confidence in a governmental structure which is operated by a person who is on bail for such a serious offence.
17. In an ideal world, those who govern us would be untouched by even the breath of scandal. On the other hand, even those who aspire to government are entitled to the presumption of innocence which every citizen in this society enjoys unless and until actually convicted of an offence.
18. Here, there are pending allegations in the purely civil realm awaiting hearing at this Tribunal and the very serious offence of blackmail awaiting hearing in the criminal jurisdiction. It is plain that Parliament has determined that even a person enjoying the presumption of innocence should be required to step aside from a function in local government until the blackmail matter is resolved one way or another.
19. I accept the submission made by Ms Ellyard that a clear case where the Tribunal might, in the circumstances such as the present, decline to make an order under section 29(4) would be one in which the serious offence related to something which was entirely unconnected with the role and functions of a Councillor.
20. Correspondingly, it would seem where the alleged offence goes to the very heart of those functions, the argument in favour of making such an order must be strong indeed. Again, a Councillor who in his local government life came before the Tribunal with a spotless record, would have a stronger argument against the making of an order under section 29(4) than would a councillor who has already been the subject of adverse findings in circumstances where those findings arose out of admissions, in effect a guilty plea.
21. For present purpose I think it is appropriate that I put aside the matters which await hearing in the Tribunal, except insofar as they shed light on the connection between Mr Muto's local government life and the charge of blackmail. To put it another way, I should take no worse a view of Mr Muto's case based simply on the fact that there are allegations to be made against him and the Tribunal next week and I proceed on that basis.
22. Nevertheless, the centrality of the allegation inherent in the offence of which he has been charged to Councillor Muto's performance of his functions in local government, is a predominant factor weighing in favour of the Secretary being successful in this application and I am fortified in the view that the application should be successful by the thought that Councillor Muto comes before the Tribunal with what are in effect prior convictions based on his own admissions. Accordingly, I propose making the order under section 29(4) of the Local Government Act 1989 which the Secretary has sought.