1. In early 2021, the Council was recruiting a new general manager. The Council engaged Red Giant to be its recruitment consultant in order to conduct the selection process. Ms Inches conducted that process on behalf of Red Giant. When Ms Inches presented a shortlist of candidates to the Council's selection panel, she disclosed that she was in a personal relationship with one of the shortlisted applicants, Mr Jason Browne ('the conflict of interest'). Councillor Doyle was one of the counsellors who was on the selection panel. Mr Browne was ultimately appointed as the Council's general manager. These events were a source of public controversy.

1. On 1 November 2021, Mr Patrick Synge submitted a code of conduct complaint to the Panel under the Local Government Act 1993. Mr Synge complained that Councillor Doyle breached the Huon Valley Council's code of conduct relating to the conduct of councillors. The complaint was upheld. The panel's determination is contained in the Code of Conduct Panel Determination Report dated 3 June 2022.

1. The Panel determined that the impugned selection process fell 'well short of meeting the requirement to carry out the process in a professional manner,' and that the candidates in the selection process were not treated fairly, in that they were not apprised of the conflict nor given the opportunity to consider the ramification of the conflict and explore legal redress:[1]

"There was an unacceptable ignorance of the proper mode of dealing with the situation which falls below the standard of conduct one can reasonably expect from a councillor. This failure by the respondents is exacerbated by the respondents taking no notice, or not sufficient notice, of the eminently sensible suggestions from [certain persons].

The Panel is of the view that the Selection Panel should have, from the time that it became aware of the relationship between the Recruitment Consultant and Mr Jason Brown, removed the Recruitment Consultant from the recruitment process and engaged a replacement consultant to either start again or advise on the appropriateness of continuing the process that had been begun. In light of the previous difficulties experienced by the prior Council, the potential for minute examination of governance processes, the cost to the community of the General Manager, and the vital importance of the General Manager to the community as the new driver of management in a new Council, this failure of procedure does bring the Council and the office of Councillor into disrepute. It is irrelevant that the Respondents were not actuated by any improper motive.

The failure was unsatisfactory governance conduct of such significance that it brought the Council into disrepute. The community deserved better.

The Auditor General stated in the report[2] - "the Tasmanian community is entitled to have confidence that local government recruitment processes are carried out in an impartial, ethical, efficient and professional manner". The Panel determines that this selection process fell well short of meeting the requirement to carry out the process in a professional manner, in that the Recruitment Consultant was not removed from the process and replaced. The Selection Panel, including Crs Doyle and Newell, were at best naive, resulting in a loss of public confidence.

In relation to the allegation that the respondents did not treat all persons fairly, the Panel supports this contention. The candidates in this selection process were not apprised of the conflict and were not given the opportunity to consider the ramifications of the relationship between the Recruitment Consultant and Mr Browne, to take legal advice, and possibly to seek an injunction restraining the further conduct of the recruitment process in that way. The Panel concludes that the appointee was also not treated fairly. Given the amount of public scrutiny relating to this matter, he is now the subject of all sorts of uncertainty, doubts and criticism, either genuine or misplaced.

The Panel determines that the behaviour of Councillors Doyle and Newell have brought the Council and office of councillors into disrepute and that candidates for the position of General Manager, including the appointee were treated unfairly because of this process."

1. Having upheld Mr Synge's complaint, the Panel then turned to the question of the appropriate sanction and determined that the appropriate sanction was that Cr Doyle would be cautioned in relation to the breaches of the Code of Conduct. The Panel's reasons for imposing that sanction included the following:

"The Panel also acknowledges that there has been significant public scrutiny in relation to this matter, which has prompted Council to ensure that all councillors receive appropriate training to avoid similar incidents in the future. The Panel does not believe that any further apology is warranted as Cr Doyle has stated that she has already made a public apology."

1. Mr Synge contends that the Court has power to review the determination of the particular sanction imposed by the Panel. His submissions are brief:

8. I maintain that the Panel should have contacted the complainants for further comment before deciding on what sanction to impose rather than solely relying on Councillor Doyle's unsubstantiated claim that she had 'made a public apology on more than one occasion'.

9. I contend that the Panel did not adequately test the information provided by Councillor Doyle and especially so in the context that when asked by the Panel what sanction we considered most appropriate we had suggested a public apology.

10.For there to have been a fair hearing further evidence should have been sought and/or the complainants should have been given the opportunity to respond to Councillor Doyle's assertion prior to the deciding what sanction to impose.

11. That not to have tested the evidence and/or not to have been given the opportunity to respond constitutes a lack of procedural fairness.

1. The public apology referred to by the Panel was based on Councillor Doyle's email dated 19 May 2022 to Ms Medhurst, executive officer of the Local Government Panel where she stated that she had already "made a public apology on more than one occasion". That assertion was undoubtedly given significant weight in the process of determining the appropriate sanction. It is common ground that the only material supporting the Panel's finding is the assertion by Councillor Doyle in her email. The materials before the Panel suggest that Councillor Doyle did not provide any details of the timing, forum or terms of any public apology. There is nothing in the Panel's reasons that indicate that it looked behind Councillor Doyle's assertion in the email.

1. failed to give him any opportunity to respond to Councillor Doyle's unsupported assertion about the apology;
2. accepted the assertion without any evidence to support it; and
3. gave the unsupported statement any weight on the question of the appropriate sanction.

1. The Local Government Act 1992, Part 3, Division 3A, Subdivision 3, s 28ZE provides that in the investigation of the code of conduct complaint, the Code of Conduct Panel must observe the rules of natural justice. The Attorney-General contends that the duty to afford natural justice to the complainant does not extend to the imposition of a sanction under s 28ZI(2).[3] Further, the Attorney General submitted that once a determination has been made at the conclusion of the investigation

"...natural justice no longer applies to the sanction to be imposed under s 28ZI(2) as the investigation was completed and the determined prior to the imposition of a sanction."

1. The Attorney General contends that because 'sanction' is dealt with separately to 'the determination' following an 'investigation', parliament's intent is that the extent of the duty to afford natural justice is restricted only to the investigation stage of the process.[4] I am not satisfied that is the correct approach to the construction of the relevant provisions of the Act. I agree that the mandated observance of the rules of natural justice in the investigation of a code of conduct complaint in s 28ZE offers some support for the Attorney-General's submission, but there is nothing in the Act which expressly and absolutely excludes the rules of natural justice in relation to any other stage of the process relating to complaints against councillors.

1. Once the Code of Conduct Panel upholds the complaint, it must then consider the exercise of its powers to sanction a councillor under 27ZI. The language of that provision refers to the panel imposing one or more of the listed sanctions "on the councillor against whom the complaint is made". That suggests to me that the stage of proceedings concerned with sanction are primarily a matter for the Panel to determine. In this case, the panel did indeed invite Mr Synge to make submissions on sanction and he did so. Assuming, without deciding, that the rules of procedural fairness required the Panel to do that, I cannot see that in this case, the panel was required thereafter to conduct a further investigation of the factual matters put by Councillor Doyle relevant to sentence such as would involve Mr Synge being given a right to respond to factual matters put to the Panel by Councillor Doyle.

1. In order for the Court to imply a requirement of procedural fairness into s 28 ZI(2) which governed the Panel's exercise of its power to sanction Councillor Doyle, Mr Synge must satisfy the Court that he had an interest in that stage of proceedings which ought to be protected in that way.[5] Mr Synge must be able to show that the Panel's exercise of its power to sanction Councillor Doyle affected his interests in a manner which is substantially different from the manner in which the Panel's exercise of that power was apt to affect the interests of the public generally.[6] Mr Synge has not identified any interest of his which would be 'affected in a direct and immediate way' as distinct from his interest as a citizen affected in the same way as other citizens generally.[7] Mr Synge's positions on the Huon Valley Residents and Ratepayers Association are not sufficient to confer such any such interest.

1. My assessment is that throughout its investigation and determination, the Panel was focused on maintaining public confidence in the standards of local governance and in so doing, it was required to do as it did, taking into account the public interest in proper standards of local governance and the interests of the candidates in the selection process. The Panel noted that there had been significant public scrutiny in relation to the matter. The Court notes that there has subsequently been an election which gave the Huon Valley community the opportunity to return a reject candidates standing for election. Respectfully, I take the view that the Panel's focus was always appropriate in relation to the interests of the public - not the interests of Mr Synge personally. The subject matter of the complaint and the Panel's investigation and determination did not reveal that Mr Synge had any particular interest of a direct and immediate nature. These considerations compel the conclusion that in this particular case the rules of natural justice did not require the Panel to provide Mr Synge with any opportunity to respond to Councillor Doyle's assertion about the apology.

1. The Attorney General submitted that a breach of the 'no evidence' rule, which requires a decision maker's decision to be based upon logically probative evidence, cannot fall within the scope of the expression 'failed to comply with the rules of natural justice'. Whether or not that is so, I do not think I need to decide. That is because I accept the Attorney-General's central submission that it was open to the Panel to accept at face value what Councillor Doyle said in her email dated 19 May 2022 to Ms Medhurst, executive officer of the Local Government Panel: that she had already "made a public apology on more than one occasion" (see paragraph 31). While that may have been a prudent and transparent step to take, there was no requirement that the Panel should not accept Councillor Doyle's assertion unless it was reliably corroborated.

1. This Court does not have jurisdiction to review the Panel's determination on the ground that it provided insufficient reasons for its determination or that it made a decision that was not open to a reasonable decision maker. These considerations are beyond the jurisdiction of the Court.

1. In conclusion, I reject the Attorney General's submission that the Magistrates Court does not have jurisdiction to hear Mr Synge's application because he is not aggrieved by the determination but only the sanction. However, I uphold the Attorney General's submission that the requirements of procedural fairness were met by the Panel in the circumstances of this case.

1. In accordance with the reasons set out above, on this review of the determination by the Code of Conduct Panel, I conclude that Mr Synge has not made out his ground of review that he was denied natural justice when the Panel exercised its powers to sanction Councillor Doyle after upholding the complaint against her. No circumstances arise which could justify the Court varying or setting aside the reviewable decision under the Magistrates Court (Administrative Appeals Division) Act 2001, s26(3). Consequently, the Court may not substitute its own decision for the reviewable decision made by the Panel.

1. Finally, I observe that no evidence has been provided justify any allegation that Councillor Doyle provided any false information to the Local Government Code of Conduct Panel.

1. The order of the Court is that the reviewable decision is affirmed.

[1] This summary appears in the closing submissions for the Attorney-General, para 5.

[2] Report of the Auditor-General No. 2 of 2021-22: Council general manager recruitment, appointment and performance assessment - 12 October 2021 (available to the public on Auditor-General's website).

[3] Attorney-General's submissions paragraph 16.

[4] Attorney-General submissions paragraph 17.

[6] Kioa v West (1985) 159 CLR 550 at 619.

[7] Kioa v West (1985) 159 CLR 550 at 584.