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

I, Brett Whitworth, Deputy Secretary, Office of Local Government, Department of Planning, Housing and Infrastructure, under delegation from the Secretary, Department of Planning, Housing and Infrastructure, by ORDER, direct that Councillor Andrew Thaler of the Snow Monaro Regional Council (Council):

1. Be suspended from civic office for a period of 3 (three) months under s 440I(2)(g) of the Local Government Act 1993 (the Act); and

2. Within 14 days of the date of this Order apologise for the misconduct under s 440(2)(d) of the Act. Council Andrew Thaler must make the apology:

(a) in writing;

(b) addressed to the individuals named in online comments set out in the Departmental Report dated 15 April 2025;

(c) publicly available on any social media profile and/or account with whom you have a content creation or production contributor affiliation; and

(d) make available to the General Manager (GM) of Council for publication by the GM in any manner the GM believes is necessary to reach the greatest number of Snowy Monaro residents.

The period of suspension commences on 13 May 2025 and ends on 4 August 2025.

The Secretary's power to take disciplinary action

1. Section 440I of the Local Government Act empowers the Secretary to take disciplinary action against a councillor if satisfied of the matters in s 440I(1)(a) and (b):

(1) The Departmental Chief Executive may take disciplinary action against a councillor if the Departmental Chief Executive is satisfied that -

(a) the councillor has engaged in misconduct (whether on the basis of a departmental report or a report by the Ombudsman or Independent Commission Against Corruption), and

(b) disciplinary action is warranted. (Emphasis added)

1. The report was a departmental report, not a report by the Ombudsman or Independent Commission Against Corruption.

Secretary's power to arrange for a departmental report to be prepared without an investigation

1. Section 440H(1) of the Local Government Act confers power on the Secretary to conduct an investigation to determine whether a councillor has engaged in misconduct. However, the Secretary may arrange for a departmental report to be prepared without an investigation being carried out in the circumstances specified in s440H(5A):

(5A) The Departmental Chief Executive may arrange for a departmental report to be prepared about whether a councillor has engaged in misconduct without an investigation being carried out under this section if -

(a) the matter has been referred to the Departmental Chief Executive by the council and the Departmental Chief Executive is of the opinion that the report may be based on the findings of an investigation conducted by or on behalf of the council, or

(b) the Departmental Chief Executive is of the opinion that the alleged misconduct, if proven, would be minor in nature and, were it to warrant disciplinary action, the disciplinary action would be comprised only of counselling or reprimanding the councillor, or

(c) the Departmental Chief Executive otherwise considers it appropriate to do so.

1. The Secretary submits that the decision in this case was made under s 440H(5A)(c).

The decision to arrange a departmental report without an investigation

1. On 10 March 20025 Brett Whitworth, Deputy Secretary, Local Government (under delegation from the Secretary) sent an email to the Manager, Investigations of the Office of Local Government (the manager). That email stated that:

Can you please commence a section 440H investigation and Departmental report as per option one please.

Thanks

1. This email was in response to the manager's email of 5 March 2025. The 5 March email identified a statement Councillor Thaler had made about Ms X in a live stream video on Facebook on the same day. The manager set out 3 options available to Mr Whitworth. Option 1 was to "By pass a 440H investigation and prepare a Departmental report and take disciplinary action if misconduct is sustained." The manager gave the following rationale for that option:

Section 440H(5A)(c) of the LGA allows the Departmental Chief Executive to arrange for a departmental report without an investigation being carried out if the Departmental Chief Executive considers it appropriate to do so. In this case, I think it would be appropriate as we are already in possession of the relevant evidence (recording of the video and transcript).

1. Option 2 was expressed as "Departmental Report and Referral to NCAT". Option 3 was expressed as "s 440H investigation and issue a Compliance Order". That option was described, in part, as follows:

We can commence a 440H investigation, encompassing a number of complaints (not just this one incident) and concurrently issue a compliance order on Councillor Thaler." (Emphasis added.)

1. After Mr Whitworth made the decision communicated in his 10 March 2025 email, a departmental report was prepared. That report states that:

On 10 March 2025, the OLG Deputy Secretary, exercising authority under s 440H(5A) of the Act, determined that a departmental report should be prepared concerning the alleged misconduct of Cr Thaler. This decision was reached based on the information available to the OLG, and without the need for a formal investigation under s 440H of the Act.

Councillor Thaler's general submissions that the Secretary's decision is invalid

1. Councillor Thaler submits that the Secretary's decision is invalid because of non-compliance with s 440H(6) of the Local Government Act:

(6) The preparation of a departmental report is a prerequisite to a decision by the Departmental Chief Executive to take disciplinary action against a councillor, unless the disciplinary action is taken on the basis of a report by the Ombudsman or Independent Commission Against Corruption. (Emphasis added.)

1. Councillor Thaler's central proposition is that the effect of s 440H(5A)(c) and s 440H(6) of the Local Government Act is that the preparation of a report is a "legal and jurisdictional" prerequisite to a decision by the Secretary to take disciplinary action against a councillor. The "purported" determination by Mr Whitworth on 10 March 2025 is said to be a formal, legal decision enlivening the capacity to prepare a departmental report without an investigation being conducted. In the absence of a valid decision of this kind having being made, the report is not a report within the meaning of s 440H(5A)(c). The existence of an "authorised" report is said to "provide the necessary foundation for disciplinary action, as required by s 440H(6) of the Local Government Act". In the absence of an "authorised report", Councillor Thaler contends that the Secretary's decision is invalid and the Tribunal must set aside that decision.
2. Councillor Thaler clarified that he is not seeking a finding or order declaring that the Secretary's decision is affected by jurisdictional error and therefore void. Rather, he is submitting that the Tribunal must determine for itself whether there is before it a report within the meaning of s 440H(5A), the conditions of sub paragraph (c) having been satisfied. If the Tribunal is not satisfied of this, it cannot "as a matter of its own jurisdiction" decide to either confirm the Secretary's decision or to amend the decision. The only option available is to set aside the decision under s 440L(4)(c).
3. In support of this submission Councillor Thaler quoted the following observations of Basten J in Cornish v Secretary, Department of Planning, Industry and Environment [2019] NSWSC 1134 at [27]- [28]:

27 Secondly, powers are conferred on the Departmental Chief Executive [6] to conduct an investigation to determine whether a councillor has engaged in misconduct. Such an investigation may be carried out "if the general manager of a council refers an allegation of misconduct by a councillor to the Departmental Chief Executive": s 440H(2)(b). . .

28 Thirdly, the Departmental Chief Executive may arrange for a "departmental report" to be prepared in relation to an investigation: s 440H(5). A report may also be prepared without an investigation where the Chief Executive is satisfied that the report may be based on the findings of an investigation conducted by or on behalf of the council: s 440H(5A)(a). That occurred in the present case. Importantly, "[t]he preparation of a departmental report is a pre-requisite to a decision by the Departmental Chief Executive to take disciplinary action against a councillor": s 440H(6).

1. I will set out the specific grounds on which Councillor Thaler submits that the Secretary's decision is invalid after considering the nature and scope of the Tribunal's jurisdiction when determining an appeal from an invalid decision.

1. An appeal under s 440L of the Local Government Act is an "external appeal" to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013 (NSW) (Tribunal Act). The scope of the Tribunal's jurisdiction when determining an external appeal depends on the provisions of the relevant legislation.
2. Section 79 of the Tribunal Act governs the making and determination of external appeals:

79 Making and determination of external appeals

(1) An external appeal may be made to the Tribunal by a person entitled to do so under enabling legislation on such a basis or grounds, or in such circumstances, as may be provided by that legislation.

(2) In determining an external appeal, the Tribunal may -

(a) in the case of enabling legislation that specifies the orders that may be made by the Tribunal on the appeal - make any of those orders, or

(b) in any other case - make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following -

(i) the appeal to be allowed or dismissed,

(ii) the decision under appeal to be confirmed, affirmed or varied,

(iii) the decision under appeal to be quashed or set aside,

(iv) the decision under appeal to be quashed or set aside and for another decision to be substituted for it,

(v) the whole or any part of the case to be reconsidered by the decision-maker whose decision is under appeal, either with or without further evidence, in accordance with the directions of the Tribunal.

1. The Local Government Act is "enabling legislation" as defined in s 4(1) of the Tribunal Act. Section 440L(1) of the Local Government Act confers a right on a councillor against whom disciplinary action has been taken by the Secretary to appeal to the Tribunal against "the decision ... to take disciplinary action". Section 440L(3) gives the Tribunal power to stay the decision to take disciplinary action. Section 440L(4) sets out the kinds of orders the Tribunal may make on hearing the appeal. Under s 440L(5), the Tribunal's decision, as amended or substituted, has effect as if it had been made in that form by the Secretary.

440L Appeals against disciplinary action

(1) A councillor against whom disciplinary action (other than disciplinary action comprised only of counselling or reprimanding) is taken by the Departmental Chief Executive may appeal to the Civil and Administrative Tribunal against the decision of the Departmental Chief Executive to take disciplinary action.

Note.

An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013.

(2) An appeal must be made within 28 days after the day on which the councillor is notified of the Departmental Chief Executive's decision to take disciplinary action against the councillor.

(3) The Tribunal may stay any decision made by the Departmental Chief Executive until such time as the Tribunal determines the appeal.

(3A) If the Tribunal stays a decision for suspension of a councillor for misconduct that has resulted or will result in disqualification from civic office under section 275(1A), the disqualification ceases to have effect or does not take effect (as the case requires) until such time as the appeal is finally determined or withdrawn.

(4) On hearing the appeal, the Tribunal may -

(a) confirm the decision, or

(b) amend the decision, or

(c) set aside the decision and substitute a new decision.

(5) If a decision is amended or substituted, the decision as amended or substituted has effect as if it had been made in that form by the Departmental Chief Executive.

(6) If the Tribunal sets aside a decision to suspend a councillor, any fee or other remuneration, or expenses, withheld under the suspension is payable to the councillor and any disqualification that resulted from the suspension ceases to have effect.

(7) (Repealed)

1. The effect of s 79(2)(a) of the Tribunal Act is that when determining an appeal under s 440L(1) of the Local Government Act, the Tribunal's powers are those listed in s 440L(4). Under s 31(2)(b) of the Tribunal Act the Tribunal also has jurisdiction to "exercise such other functions as are conferred or imposed on the Tribunal by or under this Act (the Tribunal Act) or enabling legislation (the Local Government Act) in connection with the conduct or resolution of such proceedings". (Words in brackets added.) An example of such a function is the power in s 440L(3) to stay a decision made by the Secretary.
2. A "decision" that purports to be made under enabling legislation is, for the purposes of the Tribunal Act, taken to be a decision made under that Act even if the decision was beyond the power of the decision maker to make it: Tribunal Act, s 5(2)(b). Section 5(2) provides that:

(2) For the purposes of this Act -

(a) a decision is made under enabling legislation or this Act if it is made in the exercise (or purported exercise) of a function conferred or imposed by or under the enabling legislation or this Act, and

(b) a decision that purports to be made under enabling legislation or this Act is taken to be a decision made under the enabling legislation or this Act even if the decision was beyond the power of the decision-maker to make, and

(c) a refusal of a decision-maker to make a decision under enabling legislation or this Act because the decision-maker considers that the decision concerned cannot lawfully be made under the enabling legislation or this Act is taken to be a decision made under the enabling legislation or this Act to refuse to make the decision requested, and

(d) a failure by a decision-maker to make a decision within the period specified by enabling legislation or this Act for making the decision is taken to be a decision by the decision-maker at the end of the period to refuse to make the decision.

...

Scope and nature of appeal under s 440L of the Local Government Act

1. The effect of these provisions is firstly that, when determining an external appeal under s 440L of the Local Government Act, the Tribunal is conducting a full appeal on the merits of the Secretary's decision. The Tribunal is required to determine, on the basis of the evidence before it, whether the alleged misconduct is proven and the appropriate disciplinary response.
2. The second effect is that if the Secretary's decision is invalid or "beyond the power of the decision-maker to make", the Tribunal has jurisdiction to determine an appeal from that decision. The definition of "decision" is not, either expressly or impliedly, confined to the Tribunal's administrative review jurisdiction. It applies to decisions from which a councillor may lodge an external appeal under the Local Government Act. The order that the Tribunal will make depends on reason for the invalidity. If the Secretary had no express or implied power to make the decision under appeal, or has failed to comply with a condition which is essential to the valid exercise of the power, the Tribunal will set aside the decision. If the effect of the invalidity can be overcome, for example in the case of procedural unfairness, the Tribunal may determine the merits of the decision.
3. I explain these two features of external appeals under the Local Government Act in more detail below.
4. The first feature is uncontroversial. In Fox v Percy (2003) 214 CLR 118 Gleeson CJ, Gummow and Kirby JJ distinguished between four types of appeal:

20. Appeal is not, as such, a common law procedure. It is a creature of statute. In Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd, Mason J distinguished between (i) an appeal stricto sensu, where the issue is whether the judgment below was right on the material before the trial court; (ii) an appeal by rehearing on the evidence before the trial court; (iii) an appeal by way of rehearing on that evidence supplemented by such further evidence as the appellate court admits under a statutory power to do so; and (iv) an appeal by way of a hearing de novo.

1. In Coppock v Secretary, Department of Planning and Environment [2020] NSWCATOD 89 at [86], came to the following conclusion about the nature of an external appeal under s 440L of the Local Government Act the Tribunal:

However, whatever challenge might be made to the conduct reviewer's findings, the appeal under s 440L is an appeal de novo, and the Tribunal is required to determine, on the basis of the evidence put before it, whether the alleged misconduct is proven, and if so, what is the appropriate disciplinary response. As discussed in Phillips at [39], that will require the Tribunal to consider all the evidence and make findings on the underlying conduct that brought Councillor Thaler to disciplinary attention.

1. I do not understand the parties to take issue with the proposition that, when determining an appeal under s 440L of the Local Government Act, the Tribunal is conducting a full appeal on the merits of the Secretary's decision. The Tribunal must consider all the evidence and make findings on the underlying conduct and the appropriate orders. For the reasons the Tribunal gave in Coppock v Secretary, Department of Planning and Environment, I agree with that proposition.
2. The second feature arises from the definition of "decision" in s 5(2)(b) of the Tribunal Act. That definition expands the Tribunal's jurisdiction to include determining an appeal from a decision that was "beyond the power" of the decision-maker to make.
3. The origin of the definition of "decision" in s 5(2)(b) of the Tribunal Act is what I will call the "Brian Lawlor principle". That principle was developed in the context of merits review decisions made under federal legislation. In Brian Lawlor Automotive Pty Ltd and Collector of Customs, New South Wales [1978] AATA 49 (Brian Lawlor) the court set down the principle that, in the absence of a contrary indication, a merits review tribunal is able to undertake a review of a decision even where that decision is invalid. In that case, there was no general power of revocation in the Customs Act 1901 (Cth). Brennan J found that the Administrative Appeals Tribunal had jurisdiction to review the administrator's decision but set aside the decision because the administrator had acted beyond power.
4. On appeal, the majority of the Full Court (Bowen CJ and Smithers J, Deane J dissenting) substantially followed Brennan J at first instance. The majority held that the word "decision" refers to "a decision made in fact, regardless of whether or not it is a legally effective decision": Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 41 FLR 338; 2 ALD 1, 4 (Bowen CJ) and 19 (Smithers J).
5. In the words of Brennan J at first instance, both courts and tribunals are "concerned to enquire whether the decision was made within the powers vested in the decision maker". Brennan J went on to hold Brian Lawlor at [17] that:

An administrator who does not have the power to take the administrative action he thinks appropriate, or who fails to observe the conditions which are essential to the valid exercise of his power, cannot act in excess of his powers and justify that course as administratively expedient. It is the efficient and just exercise of available powers to achieve a desired end which constitutes sound administrative action; and the end to be achieved neither extends the powers available to achieve it nor justifies the taking of action in excess of the powers available. (Emphasis added.)

1. The limits of the Brian Lawlor principle have been tested in XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 256; [2022] FCAFC 6 but it remains an important principle in Australian administrative law. (See J Townsend, "The decisions most in Need of Review: Brian Lawlor, XJLR, and Effective Means of Redress" (2025) 31 AJ Admin L 186.) The definition of "decision" in s 5(2)(b) of the Tribunal Act remains the same despite these developments.
2. The Tribunal also has jurisdiction to determine an external appeal where the decision is invalid or "beyond power" because the decision maker has failed to comply with a condition which is essential to the valid exercise of the power. Such a condition may be a mandatory procedural requirements imposed by the enabling legislation. In a decision under the Migration Act 1958 (Cth) applying the Brian Lawlor principle, it was held that a decision to cancel the applicant's student visa was invalid: Zubair v Minister for Immigration [2003] FMCA 440. The invalidity arose because of non-compliance with mandatory conditions relating to procedural fairness. Nevertheless, the Federal Magistrate found that where the Administrative Appeals Tribunal has conducted a merits review "an existing invalidity which arises out of procedural unfairness can be overcome": Zubair at [28]. The Federal Court of Australia dismissed an appeal from that decision: Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248.

Councillor Thaler's specific submissions on invalidity

1. Unlike the situation in Brian Lawlor, Councillor Thaler does not submit that the Secretary's decision is invalid because of a lack of power to suspend him or order him to apologise. The Secretary has express power under s 440I(1) of the Local Government Act to take those disciplinary actions against a councillor in the circumstances outlined in that provision. However, a decision may be invalid or "beyond power" for other reasons such as a failure to observe a condition which is essential to the valid exercise of power: Brian Lawlor at [17].
2. The reasons Councillor Thaler submits that the Secretary's decision is invalid or beyond power are that:

(1) Mr Whitworth's 10 March 2025 email asks the manager to "commence a section 440H investigation and Departmental report as per option one". Although the email refers to "option one" the decision that was in fact made was to order an investigation. There was no such investigation. The resulting document is, therefore, not a report within the meaning of s 440H(5A)(c).

(2) If the decision was a decision to arrange a report without an investigation under s 440H(5A(c), it was to authorise a report in relation only to Councillor Thaler's "live stream on Facebook on 5 March 2025". The "purported" report went further than the 5 March 2025 Facebook live stream, extending to a 6 March video and to Facebook posts on 12 and 14 March 2025. To extend the scope of the report to include these later matters, there would have to have been subsequent decisions, made after 10 March 2025, but there were no such decisions and the Tribunal cannot cure that defect.

(3) The material constituting the decision to arrange a report without an investigation does not reflect the statutory obligation on the decision maker, having regard to how the duty to "consider" has been construed.

Is the Secretary's decision invalid because it was in fact a decision to order an investigation?

1. Neither the manager nor Mr Whitworth gave evidence but this factual issue is capable of being resolved on the documentary evidence. Mr Whitworth refers to "option 1" in the email of 10 March 2025. I find that he decided to arrange for a departmental report to be prepared about whether a councillor has engaged in misconduct without an investigation being carried out. The fact that he also referred in the email to an "investigation" is not a strong enough indication that he meant to agree to option 2 or option 3. I also find, on the basis of the manager's reference to the wording in s 440H(5A)(c), that the decision was made under that provision. Having made those findings, there is no factual basis for this submission.

Is the Secretary's decision invalid because the report extended to alleged misconduct after 5 March 2025?

1. Mr Whitworth, acting as the Secretary's delegate, made a decision to arrange for a report to be prepared without an investigation being carried out: Local Government Act, s 440H(5A)(c). The subject matter of that decision was alleged misconduct by Councillor Thaler on 5 March 2025. The subject matter of that decision did not include the alleged misconduct on 6 March 2025 video or the Facebook posts on 12 and 14 March 2025. That is apparent from the content of the email from the manager to Mr Whitworth. In particular, the manager set out an option of commencing a 440H investigation encompassing a number of complaints "not just this one incident".
2. This defect will make the Secretary's decision invalid if inclusion of all the alleged misconduct is a condition which is essential to the valid exercise of the Secretary's powers under s 440I of the Local Government Act. In my view, it is not. Under s 440H(6) it is "the preparation of a departmental report" that is a pre-requisite to the taking of disciplinary action against a councillor. A departmental report was prepared. There are no requirements or conditions as to the content of a departmental report, except that it must be "about whether a councillor has engaged in misconduct": Local Government Act, s 440H(5A). That is what the report is about.
3. I note that the Tribunal came to a similar view on the facts of that case in Coppock v Secretary, Department of Planning and Environment [2020] NSWCATOD 89 at [60].

Is the Secretary's decision invalid because the Secretary did not give proper consideration to the decision to arrange a report without an investigation?

1. Councillor Thaler submitted that the evidence fails to disclose any consideration by the Secretary of the relevant issues when making the decision to arrange a report without an investigation under s 440H(5A)(c) of the Local Government Act. The content of a statutory duty to "have regard to" or "to consider" something has been expressed in various ways. For example, in Tickner v Chapman [1995] FCAFC 1726; (1995) 57 FCR 451 at 462 Black CJ said that a duty to "consider" required an "active intellectual process" directed at the matter required to be considered.
2. The Secretary's decision to arrange a report without an investigation is not the decision from which Councillor Thaler has appealed. Section 440H(5A)(c) of the Local Government Act allows the Secretary to reach a view that it is appropriate to arrange for a departmental report to be prepared without an investigation being carried out. On the basis of Mr Whitworth's 10 March 2025 email, I have found that the Secretary reached that view. Giving "consideration" to that decision is not a condition which is essential to the valid exercise of the Secretary's power to take disciplinary action against Councillor Thaler. Nor is there any other basis on which that decision is invalid.

1. Part 1 of Chapter 14 of the Local Government Act is headed "Conduct". It provides for codes of conduct applicable to councillors, members of staff and delegates of councils. Under s 440(3), each council must adopt a code of conduct that incorporates the provisions of the model code of conduct prescribed under the regulations, and each councillor must comply with the applicable provisions of the council's adopted code and the model code of conduct: s 440(5).
2. Under s 440I of the Local Government Act, the Departmental Chief Executive may take disciplinary action against a councillor if the satisfied that "the councillor has engaged in misconduct". "Misconduct" is defined in s 440F(1)(b) to include "a failure by the comply with an applicable requirement of a code of conduct". Clause 3.1 of the Council's Code of Conduct relevantly provides as follows:

General conduct 3.1

You must not conduct yourself in a manner that:

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

...

c) is improper or unethical

...

e) causes, comprises or involves intimidation or verbal abuse

...

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

1. Clause 3.12 of the Council's Code of Conduct relevantly provides as follows:

All council officials, including councillors, owe statutory duties under the Work Health and Safety Act 2011 (WH&S Act). You must comply with your duties under the WH&S Act and your responsibilities under any policies or procedures adopted by the council to ensure workplace health and safety. Specifically, you must:

...

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

1. Clause 7.9 of the Council's Code of Conduct relevantly provides as follows:

Inappropriate interactions

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

...

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

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

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

...

1. On 6 February 2025, the Minister for Local Government issued the Council with a performance improvement order (PlO) made under s 438A of the Local Government Act. The PlO required that the Council and its councillors take certain actions, including:

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

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

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

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

1. On 10 February 2025, Councillor Thaler signed the undertaking as required by order 1 of the PlO_._ The undertaking stated:

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

I will

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

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

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

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

1. According to Councillor Thaler he read and signed the undertaking but did so under duress. I do not understand the Council to be submitting that the misconduct the subject of these proceedings includes a breach of this undertaking.

1. On 4 March 2025, Cr Thaler uploaded a publicly viewable written post to the social media platform Facebook where he stated that he intended to "air some very dirty laundry of the [Council] tomorrow morning. 10am. Live chat via my YouTube Channel."

1. On 5 March 2025, Councillor Thaler published an audio and visual recording to the social media platform YouTube (5 March 2025 video). The 5 March 2025 video is approximately 55 minutes long and appears to be self-recorded by Councillor Thaler.
2. During the 5 March 2025 video Councillor Thaler refers to his role as a councillor, stating things such as, "On behalf of Snowy Monaro Regional Council, of which I am a councillor in the governance role" and "I'm Andrew Thaler, a councillor for Snowy Monaro Regional Council." About twenty seconds into the recording Councillor Thaler says:

"I'm going to put a bunch of things on record. It will lead probably to code of conduct complaints or a round of new weird allegations by my fellow councillors on the council. But I don't think anyone's worked out yet that I don't care."

1. During the 5 March 2025 video, Councillor Thaler said the following, among other things, about Councillor Higgins:

"And one of the local councillors, Councillor Tanya Higgins, who lives nearby, the one that's referred to in the Sydney Morning Herald article in October last year, or September last year, as the "fat dumb blonde" "she drove over there in her Prado four-wheel drive or whatever it was."

"... Tanya Higgins is the fat dumb blonde in the Sydney Morning Herald article, referenced as the fat dumb blonde in the Sydney Morning Herald article. Hashtag, this will be the eleventieth code of conduct. Tanya Higgins is the fat dumb blonde. It's physically obvious. She's a nasty, nasty liar. "

"And the reason why I call Tanya the fat dumb blonde is because that's what she is. And I'm calling you out. You're a disgusting, despicable Labor Party creature who lies about me at every opportunity. "

1. In the same video Councillor Thaler said the following about Ms X:

"And there's a woman 'woman' [Councillor Thaler gestures quotation marks with his hands]. Let's just focus on the 'man' bit in the woman. It's a DEl hire, called [Ms X]. [Ms X] doesn't know how to tell the truth. And l've had various phone calls, conversations, before even this event with [Ms X]. And she's never done her job. She does not do her job. She's environmental compliance. She does not know what she's doing. "

"We have an environmental compliance manager that doesn't know whether it's a boy or a girl. And I say that as a derogatory comment, because you don't know what you are, you've got a problem with your life. And when you're called upon to adopt a regulatory role and be a person of reasonable intestinal fortitude, be able to make a decision in the public interest that may be averse to someone else's decision, you can't work out you're a boy or a girl, how can you work out whether to enforce the law or take up the power of a law or not? And yet that's where we are. I've made reports to [Ms X] about a variety of environmental catastrophes around this area, and she does nothing. All I get is negative responses about this [Ms X]. And if you look at any of her history, she doesn't keep a job for very long. She keeps disappearing around the country from job to job to job to job. I've never met this person. I have the strongest empathy for anybody who might have gender dysphoria or be trans or what have you, but your personal life shouldn't bleed into your public life. And can only see abject incompetence and I'm calling time. I have spoken to [Ms X] and heard nothing but bullshit. "

"Why do we have environmental compliance officers if they don't know how to do their job, don't know what their job involves? Talk the big talk, you can't walk a good walk. Because I've heard it all [Ms X]. You can be upset by what I'm saying. A simple salient fact."

1. In the same video Councillor Thaler said the following about Mr Dunshea:

"So, to Dunshea, I was sort of guiding him a bit to say, your public reputation is built upon your actions at the present. And he comes back from the Shoalhaven and to ask a simple question to the residents of the Shoalhaven, hey, do you want your CEO back? They say, no fucking way. They hate him. You do a Google search, and you see there is a series of contentious decisions, public decisions, questions over spending and finances. There's a litany of things... This is what it involves, Stephen, me sharing my opinion of you, and I'll hashtag it. So, if you apply for a job with another Council as a local or short-term interim CEO, and they look your name up, they might come to a video like this or others... That's not me threatening you, that me holding you to account for your actions, or inactions.., so threaten me all you like Dunshea, I told you repeatedly, never threaten me. Cause when you do, I come back at you."

[to Dunshea] "Go fuck yourself Oh, Councillor Thaler, you can't say those things. But I can, because I just did."

"Whilst you may only be a short-term CEO, Mr Dunshea, it is not an excuse for you not to give a shit... Hashtag "Does Nothing Dunshea". Let's not forget he tried to tangle with me... Facts, Stephen. They bite you in the bum. Cause some of us do the research. So don't try to lie to me anymore. Do your job or hand in your resignation, put your keys and your credit card on the table and just fuck off. It's exactly what I said to David Hogan, it's exactly what David Hogan did... We don 't need "Do Nothing Dunshea ". We need "Do Something Dunshea. "

1. On 6 March 2025, Councillor Thaler published an audio and visual recording to the social media platform Facebook (6 March 2025 video). The 6 March 2025 video is approximately 23 minutes long and appears to be self-recorded by Councillor Thaler. In that video Councillor Thaler repeats many of the statements made during the 5 March 2025 video. During the recording Councillor Thaler reads, and responds to, an email complaining about his 5 March 2025 video.
2. In relation to Councillor Higgins, Councillor Thaler repeatedly describes her as a "fat dumb blonde". Councillor Thaler also says:

"Does someone want to tell me I'm wrong?" in response to his 5 March 2025 video commenting that Cr Higgins was a "fat dumb blonde".

"So there's your lies, Tanya. You are a fat dumb blonde because you tell lies to people who don't like you to try to make yourself feel better about everything that you don't do...you certainly don't take your head out of the trough long enough to notice there are other people in this world."

1. In respect of Ms X, whom Councillor Thaler referred to as a "DEl hire" in the 5 March 2025 video, he read the email which complained about his 5 March 2025 video:

"[reading from the letter] Refers to council employee [Ms X] as a DEl hire. Implies she is transgender. Says that she doesn't know how to tell the truth. Does not do her job. Does not know what she is doing. Does nothing. Doesn't keep a job for very long, and says nothing but bullshit."

"... that's pretty much what I said. And she is transgender, and she's not doing anything. And she does say a lot of bullshit. See? Well observed."

"...they haven't used that power. The transgender DEl hire has the power, apparently. Doesn't know how to use it. That's my point. I will extend sympathy, go to, care and whatever else is needed. If you're lying, repeatedly, I'll call you out. And you can't hide behind your DEl shield It doesn't work for me. I treat everyone the same. Fat, skinny, blonde or black. "

"That is the process that [Ms X] invoked to get a statement from a victim. Do you want to tell me that I need to be soft on the DEl hire? No, the DEl hire tried to get me. The DEl hire, [Ms X], thought she would get me for trespass."

1. Councillor Thaler said the following about Peter Smith:

"How do we restore faith? By getting rid of people like... Mr Smith, Peter Smith, agent Smith. Mr Corrupt himself."

1. On 12 March 2025, Councillor Thaler uploaded a publicly viewable written post to Facebook, on the page of user profile "Andrew Thaler". The post included the following comments:

"1 also am completely shocked that one of my fellow councillors has resorted to legal threats to try and stop the truth being told."

"I now call on Tanya Higgins to resign from the council... don't threaten it Tanya, do it. You are not the victim."

"Tanya has falsely claimed many things."

"The game is now over Tanya. You are not a fit or proper person to be a councillor in service of the people. Tanya, you are a big, fat, liar. It's time to go.

"She should just resign." (in reference to Councillor Higgins)

1. On 14 March 2025, Councillor Thaler shared a publicly viewable Facebook post on the page of user profile 'Andrew Thaler', which was originally posted by Chris Chan in 'The Monaro Zone' Facebook group. It alleges that Councillor Higgins knowingly failed to act concerning illegal waste dumping and asbestos contamination posing a health risk to the community. The post included the comment:

Tanya knew. She falsely claimed credit for things Luke and I did. Very typical lefty behaviour . . lies gaslighting, and bullying the community. Tanya needs to resign.

1. The post accused Councillor Higgins of misleading the public and urged readers to "share this message across the Monaro region, talk to your neighbours, send it to local groups, and spread the word". It concluded with the statement, "Tanya Higgins must answer to this", accompanied by her photograph.

1. The statement of reasons for the Secretary's decision, dated 5 May 2025, records that Mr Whitworth "is satisfied that Councillor Thaler engaged in misconduct as defined by s 440F of the Local Government Act in relation to all allegations within the report." Specifically:

(1) Councillor Thaler engaged in misconduct by making comments in publicly available social media videos on 5 and 6 March 2025 and sharing a post on 14 March 2025 which are reasonably likely to have brought the Council officials into disrepute in breach of clause 3.1(a) of the Code.

(2) Councillor Thaler engaged in misconduct by making comments in publicly available social media videos of 5 and 6 March 2025 which are reasonably considered to constitute improper and/or unethical conduct in breach of clause 3.1(c) of the Code.

(3) Councillor Thaler engaged in misconduct by making comments in publicly available social media videos on 5 and 6 March 2025 which are reasonably considered to constitute intimidation and/or verbal abuse in breach of clause 3.1(e) of the Code.

(4) Councillor Thaler engaged in misconduct by making comments in publicly available social media videos on 5 and 6 March 2025, posts of 12 March 2025 and sharing a post on 14 March 2025 which are reasonably considered to constitute harassment, bullying and/or unlawful discrimination in breach of clause 3.1(g) of the Code.

(5) Councillor Thaler engaged in misconduct by making comments in publicly available social media videos of 5 and 6 March 2025 which could compromise the psychological safety of the affected individuals, in breach of clause 3.12 of the Code.

(6) Councillor Thaler engaged in misconduct by making publicly available social media comments in his 5 March 2025 video which are reasonably considered to constitute pressuring council staff in the performance of their work or recommendations that should make, in breach of clause 7.6(i) (sic 7.9(i)) of the Code.

(7) Councillor Thaler engaged in misconduct by making publicly available social media comments in his 5 March 2025 video which are reasonably considered to constitute being overbearing or threatening to council staff, in breach of clause 7.6(f) (sic 7.9(f)) of the Code.

1. I find that the following comments in the 5 and 6 March 2025 videos and the sharing of a Facebook post on 14 March 2025, are likely to bring the council or other council officials into disrepute:

(1) repeatedly implying that Ms X was incompetent because she is a "DEI" (diversity, equity and inclusion) hire;

(2) calling Councillor Higgins "dumb and a "liar"; and

(3) implying that Mr Smith is corrupt.

1. The following comments in the 5 and 6 March 2025 videos are improper and unethical:

(1) repeatedly referring to Councillor Higgins as "fat";

(2) repeatedly calling Ms X a "DEI hire" implying that she was appointed based on diversity, equity and inclusion policies rather than merit;

(3) implying that Ms X is unable to perform her role or is incapable of doing so because she is a transgender person by saying "if you can't work out if you're a boy or a girl, how can you work out whether to enforce the law or take up the power of a law or not".

1. The following comments in the 5 and 6 March 2025 videos constitute intimidation and verbal abuse:

(1) repeatedly referring to Councillor Higgins as "fat" and "dumb";

(2) implying that he caused Council's former General Manager (David Hogan) to resign, and suggesting that Mr Dunshea also resign; and

(3) repeatedly referring to Ms X as a "DEI hire" and as "it".

1. The following comments in the 5 and 6 March 2025 and the post of 12 March 2025 constitute harassment and bullying:

(1) repeatedly referring to Councillor Higgins as "fat" and "dumb";

(2) referring to Councillor Higgins as a "big, fat liar" and that she is not a fit and proper person to be a councillor;

(3) publicly calling for Councillor Higgins' resignation;

(4) repeated references to Ms X as a "DEI hire" and implying that she is unable to perform her role because she can't work out if she is a girl or a boy;

(5) referring to Ms X as "it"; using air quotations when referring to her as a woman and focusing on the "man" bit in the word "woman".

1. Councillor Thaler has not taken care that his comments do not adversely affect the health and safety of other people. The comments outlined above are reasonably likely to have adversely affected the health and safety of Ms X, Councillor Higgins and Mr Dunshea.
2. The comments also constitute "inappropriate interactions" with Ms X, Mr Dunshea and Mr Smith as employees.

1. Councillor Thaler does not deny that he said the things set out above. He admits that he has engaged in "misconduct" under the Loal Government Act but only on a "strictly literal definition" of that word. He expressed the view that conduct is not necessarily in contravention of the Code of Conduct if it is in the public interest. He maintained that he was not giving up the right to defend himself against false allegations in public. He added that the Code of Conduct cannot prevent a person from using rude, hard or offensive words including swear words. Furthermore, he will only comply with the Code of Conduct if it is applied equally to everyone at the same time.
2. Councillor Thaler submits, in effect, that the seriousness of the misconduct is reduced because of the circumstances in which the comments were made. Those circumstances were said to be that: there was a political agenda to remove him from Council; there was a "pattern of antagonistic behaviour" towards him by certain councillors and executive staff; other councillors had falsely accused, threatened or insulted him: he was annoyed, frustrated, and incensed by other people's lies and incompetence; there would be irreparable consequences if he did not correct the record; and that no-one cared about his well-being at work.
3. In relation to the comments about Councillor Higgins, Councillor Thaler provides the following background. Councillor Higgins was elected as a Councillor in December 2021. Sometime around August 2022 he says he discovered posts on her Council Facebook page and her personal Facebook page referring to him with words to the effect of "that I was the ugliest man alive, a man than no woman could ever find attractive". While he says Councillor Higgins' comments did not hurt his feelings, they hurt his wife's feelings. He says these posts and videos have since been deleted.
4. In early September 2024 the Sydney Morning Herald published articles that Councillor Thaler says were a political attack intended to harm his group's chances of being elected to Council. Photographs of Councillor Higgins and others appeared in the articles along with "various negative comments directed towards me".
5. Councillor Higgins, Mr Dunshea and Ms X also feature in what Councillor Thaler refers to as the asbestos incident. A resident of Michelago in NSW told Councillor Thaler that Councillor Higgins had been telling members of the community that he was responsible for the delay in investigating the asbestos found on the resident's property. Councillor Thaler says he became incensed at what he believed were personal attacks on him and by what he believed was incompetence by both Mr Dunshea and Ms X in relation to the asbestos incident. He perceived that there would be serious and irreparable consequences if the comments about him causing delays were not countered to some degree. In his words, the remarks about Councillor Higgins were made "to highlight the serious nature of the issue I was raising in the public interest and to let people know that I would not be intimidated into remaining quiet".
6. Councillor Thaler says that he found Mr Dunshea difficult to work with. He provided copies of correspondence with Mr Dunshea about issues surrounding the Performance Improvement Order issued by the Minister for Local Government. Councillor Thaler asserts that Mr Dunshea repeatedly refused to provide information to Councillors and to follow lawful directions.
7. In his 23 June 2025 statement, Councillor Thaler maintains that his comments towards Mr Dunshea were not motivated by personal animosity or spite. When he said that Mr Dunshea should hand in his resignation and "just fuck off" he claims to have merely been sending him a message to do his job properly.
8. In relation to comments about Ms X, Councillor Thaler says they were made "out of frustration due to lack of appropriate and credible action from her in her strategically important role" in the Council's administration. Councillor Thaler said again that he queried Ms X's approach given the conflict that existed within her life. He confirmed that he was referring to her gender. He maintains that his comments were derogatory "to her role", but not to her as a person. When asked directly whether it was wrong to equate Ms X's transgender status with her competence, Councillor Thaler gave no responsive answer. Ultimately Councillor Thaler volunteered that he had made the comments as a derogatory statement because he was frustrated.
9. In relation to comments about Mr Smith, Councillor Thaler says that the genesis of those comments was his lack of accountability, transparency and action. Councillor Thaler gives an account of circumstances going back to 2011 and 2019 involving Mr Smith.
10. Councillor Thaler describes the posts on his Facebook account on 5 and 6 March as being to vent his frustration about the matters I have outlined above. He states that:

I used language that may have caused the people I was describing to feeling either harassed, discriminated against, vilified, bullied, or that their health and safety was compromised.

Though I did use those words to shock or to emphasise what I was explaining in my posts, it was never my intention to make those people feel such a way.

Particularly in relation to my comments towards Mr Dunshea, I never intended to place pressure upon Mr Dunshea regarding the performance of his duties, but rather I sought to convey that as both a community representative and as an individual resident of the area, that I would not allow myself to be intimidated when matters that are of great public interest are involved.

1. In his 5 June 2025 statement Councillor Thaler apologises for his language. He says he intends to comply with Order 2 (to apologise for the misconduct in the manner specified in the order) but cannot do so because of the non-publication order. That order relates only to Ms X. Councillor Thaler has not complied with the order to apologise to the other people identified in that order. When questioned about his willingness to apologise, Councillor Thaler was equivocal. He said that if the context in which he made the comments was clearly explained, he could apologise.
2. Councillor Thaler has offered to apologise for calling Councillor Higgins "fat" but not for calling her a liar. In oral evidence Councillor Thaler apologised for calling Councillor Higgins "a big fat liar" but said that is the size of the lie. He added that he "could express remorse for relating the statement to her size." As for the comment, "[A]nd the reason why I call Tanya the fat dumb blonde is because that's what she is", he says he was Councillor Higgins who had who put those comments in the media. He was just reading the headlines from the Sydney Morning Herald.
3. When asked specifically whether it was appropriate to comment on people's physical appearance, Councillor Thaler agreed that it was not and that it could appear childish. Ultimately, in re-examination, Councillor Thaler undertook not to call Councillor Higgins a "fat dumb blonde" again or make other disparaging remarks about her physical appearance. . He rejects the proposition that the workplace is psychologically unsafe for Councillor Higgins.
4. Councillor Thaler says he is remorseful to an extent, but that it is hard to express remorse for speaking the truth. When given another opportunity to express remorse, Councillor Thaler said it was difficult to be remorseful for comments correcting the lies that Councillor Higgins had told.
5. In relation to Ms X, Councillor Thaler said he was not intending to attack her personally, just her 'office'. He says he is remorseful to an extent for attacking her personally. When it was formally put to him in re-examination, Councillor Thaler agreed that linking Ms X's transgender status with her performance was "wrong" and a breach of the Code of Conduct. Councillor Thaler says he apologised privately to Ms X and any further apology depends on whether Ms X wants an apology. Councillor Thaler does not accept that his comments had an adverse effect on Ms X's well-being. He added that the workplace is already hostile and demeaning so his comments cannot make that situation worse.
6. While he was happy to participate in group training about being respectful to fellow councillors and staff, Councillor Thaler expressed the view that he is respectful and does not need training.
7. Councillor Thaler states that despite the history which he recounts in his statements, there has never been any consideration for his workplace safety as a result of "false allegations, misrepresentation, outright lies or abuse of power". He maintains that the workplace was hostile and demeaning to him. He has made complaints about others but maintains that the process does not work.

(2) The Departmental Chief Executive may take one or more of the following actions (and any such action is disciplinary action) -

(a) counsel the councillor,

(b) reprimand the councillor,

(c) by order, direct the councillor to cease engaging in the misconduct,

(d) by order, direct the councillor to apologise for the misconduct in the manner specified in the order,

(e) by order, direct the councillor to undertake training,

(f) by order, direct the councillor to participate in mediation,

(g) by order, suspend the councillor from civic office for a period not exceeding 3 months,

(h) by order, 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 3 months (without suspending the councillor from civic office for that period).

1. The Tribunal must confirm, amend or set aside the Secretary's decision and substitute a new decision: Local Government Act, s 440L(4).
2. In Deputy Secretary of the Department of Local Government, Planning and Policy v Doueihi (No 2) [2022] NSWCATOD 3 at [36]-[45] the Tribunal set out several general principles, the following of which are relevant to this case:

39.Secondly, there are there are important but indirect effects of a disciplinary order. These were recognised by Basten JA in NSW Bar Association v Meakes [2006] NSWCA 340 in relation to barristers. These considerations are relevant (by analogy) to orders made in respect of a local councillor and include:

(1) The order reminds other councillors of the public interest in the maintenance of high standards;

(2) The order may give emphasis to the unacceptability of the conduct involved; and

(3) By speaking to the public at large, the order seeks to maintain confidence in the standard of conduct of local councillors.

40. Thirdly, there is a "public interest in having the respondent's conduct denounced as unacceptable", and that orders made by the Tribunal would "make plain that conduct of the kind engaged in is unacceptable": Health Care Complaints Commission v Do [2014] NSWCA 307 at [39].

41. Fourthly, the availability of a range of statutory disciplinary options implies the necessity to consider whether those short of depriving the constituents of their representative can adequately punish the councillor's failure to comply with the statutory obligations and vindicate the public interest in maintaining the honesty of municipal administration: Mehajer v Chief Executive of the Office of Local Government [2014] NSWSC 1804 at [13].

42. Fifthly, whether the proposed orders will prevent the respondent from exercising any functions as a councillor, and the impact of this on constituents: Mehajer at [13], [15] and [21].

43. Sixthly, whether there have been any previous offences: Mehajer at [15]; Phillips v Director-General, Department of Premier and Cabinet [2014] NSWCATOD 48 at [52].

44. Seventhly, the acknowledgement if any, or apology or remorse for, the conduct by a respondent, and the lack of any insight into the conduct on their part.

45. Eighthly, the longer the experience as councillor the greater should be the councillor's understanding and knowledge of their duties and obligations. That is not to say that misconduct of an inexperienced councillor should be excused. All councillors must act honestly and exercise a reasonable degree of care and diligence in carrying out his or her functions under the Act (s 439(1)) and comply with the Council's code of conduct (s 440(5)).

1. Councillor Thaler's misconduct includes repeatedly abusing and personally attacking another councillor and council employees. Examples include: referring to Councillor Higgins as a "fat dumb blonde", a "big, fat liar" and that she is not a fit and proper person to be a councillor; to Ms X as "it", a "DEI hire" and that "if you can't work out if you are a boy or a girl, how can you work out whether to enforce the law . . "; to Mr Dunshea by saying ". . do your job or hand in your resignation, put your keys and your credit card on the table and just fuck off". Councillor Thaler also threatened and attempted to intimidate these people. These attacks and threats were made in the process of criticising their integrity or competence or in response to perceived threats they had made.
2. Councillor Thaler's claim that he is respectful and does not need training is not supported by the evidence.
3. Councillor Thaler has attempted to justify or explain his conduct with implausible claims such as: that he was only referred to Councillor Higgins as the "big fat blonde" because that is how she was described in a Sydney Morning Herald article; that he was not trying to get Mr Dunshea to leave when he said "hand in your resignation" and "fuck off" he was just sending a message to do his job properly; and that he was not being derogatory to Ms X personally when linking her transgender status to her competence. I reject these assertions.
4. Despite claiming that it was not his intention to make these people feel harassed or bullied or to compromise their health and safety, Councillor Thaler did not take reasonable care to ensure that his conduct did not adversely affect the health and safety of these people.
5. Councillor Thaler submitted that only a small component of the videos is in breach of the Code of Conduct. However the proportion of the overall communication that constitutes the misconduct does not detract from its seriousness. Councillor Thaler repeatedly verbally abused and intimidated a Councillor and council employees.
6. Councillor Thaler says that that he was annoyed, frustrated and incensed by the conduct of others and that the misconduct must be viewed in that context. Believing that someone has lied, leaked information, attacked him personally or is incompetent does not reduce the seriousness of Councillor Thaler's misconduct. Councillor Thaler can raise matters in the public interest through the appropriate channels and defend himself when he considers he has been wrongly accused. Doing so does not give him the right to engage misconduct.
7. I do not accept the proposition that a councillor should only be suspended for 3 months in the most extreme cases of misconduct. The Secretary did not take the more serious step of referring the matter to the Tribunal for consideration under s 440J(2)(b) of the Local Government Act. If that step had been taken, the Tribunal would have had power to disqualify Councillor Thaler from holding civic office for a period not exceeding 5 years: Local Government Act, s 482A.
8. A 3 month suspension will prevent Councillor Thaler from exercising his functions during that time. There was no evidence as to the impact that suspension would have on constituents, but the fact of not being able to exercise his functions is a matter I take into account. However, given the admitted misconduct and the findings I have made above, the appropriate order is to confirm the Secretary's decision to suspend Councillor Thaler for 3 months and order him to apologise for the misconduct in the manner specified.

1. The correct name of the Respondent is Secretary, Department of Planning, Housing and Infrastructure.

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.