Thaler v Secretary, Department of Planning, Housing and Infrastructure [2026] NSWCATOD 37;

Carr v Western Australia (2007) 232 CLR 138; [2007] HCA 47

Councillor Andrew Thaler v Secretary, Department of Planning, Housing and Infrastructure [2026] NSWCATOD 21

Esso Australia Pty Ltd v The Australian Workers' Union (2017) 350 ALR 404; [2017] HCA 54

Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

SAS Trustee Corporation v Miles (2018) 361 ALR 206; [2018] HCA 55

Semmens v The King [2026] VSCA 9

Ward v Williams (1955) 92 CLR 496; [1955] HCA 4

Secretary, Department of Planning, Housing and Infrastructure (Respondent)

1. On 26 February 2026 Councillor Andrew Thaler (Cr Thaler) filed an application seeking a stay of the decision of the Secretary, Department of Planning, Housing and Infrastructure (the Secretary) to suspend him for a period of three months pursuant to s 440I of the Local Government Act 1993 (NSW) (the LGA) on 29 October 2025.
2. In the alternative, Cr Thaler, who has represented himself in this application, sought "to clarify the decision of the Secretary dated 29th October 2025 as having no current effect due to the operable dates, via this application filed 26 February 2026, and that the Tribunal state that Councillor Thaler IS NOT currently suspended" (original emphasis). Cr Thaler set out the basis on which he sought relief in either of the terms of his application.
3. The Secretary contends that Cr Thaler is currently suspended, and will continue to be suspended until 23 May 2026, unless he obtains a further stay of his suspension pending the determination of his pending appeal against that suspension. The Secretary opposes the granting of any stay. Cr Thaler disputes that he is currently suspended, but, if the Tribunal finds that he is, seeks a stay of his suspension pending the determination of his appeal against it.
4. The Tribunal was informed on 6 March 2026 that Cr Thaler's attempts to participate in Council activities are currently being blocked by Council officers. There is an urgent need for a decision as to whether Cr Thaler is currently suspended, and, if he is, facilitating an expeditious hearing of his stay application. On receipt of Cr Thaler's application, the Tribunal made directions for the filing of preliminary submissions, and listed the matter for a Directions Hearing on 6 March 2026.
5. During the directions hearing on 6 March 2026, which proceeded for approximately one and a half hours, the parties made submissions with respect to the issues of immediate importance. At the conclusion of the directions hearing, the Tribunal identified two questions for determination, and directed that the parties file any further submissions in support of their respective cases by the close of business on Tuesday, 10 March 2026. Although contending that the questions should be answered differently, the parties did not then disagree with the Tribunal's articulation of them. Sensibly, the parties did not oppose the questions identified being determined on the papers. The Tribunal informed the parties that it would publish its decision at 2pm on 12 March 2026. The late filing of submissions led the Tribunal to inform the parties that it would publish its decision at 4pm on 12 Mach 2026.
6. Although the Secretary subsequently submitted that they should not be answered, or should be reformulated, the two questions identified at the conclusion of the directions hearing on 6 March 2026 were:

(i) whether Cr Thaler is currently suspended from holding civic office; and

(ii) if he is, whether the Tribunal has power to grant a further stay of the suspension order.

1. The background to the current application can be briefly stated. None of the background can be controversial.
2. On 29 October 2025, the Secretary made a decision to take disciplinary action against Cr Thaler pursuant to s 440I of the LGA suspending him from civic office for a period of three months (suspension order). Pursuant to s 440K(2) of the LGA, the period of suspension was due to commence on 5 November 2025, and expire on 5 February 2026.
3. On 31 October 2025 Cr Thaler filed an appeal against the suspension order pursuant to s 440L(1) of the LGA. On 31 October, following a hearing, pursuant to s 440L(3) of the LGA, the Tribunal stayed the suspension order (stay order) pending further order of the Tribunal. The Tribunal gave oral reasons for that decision.
4. On 21 January 2026, the Secretary filed an application seeking the discharge of the stay order. On 23 February 2026, for the reasons which were then given orally, the Tribunal discharged the stay order.
5. The hearing of Cr Thaler's appeal against the suspension order was listed to commence on 25 February 2026. The Tribunal adjourned the hearing of Cr Thaler's appeal until late April 2026.
6. On 26 February 2026, Cr Thaler was informed in writing that the Secretary "considers that, on 23 February 2026, the Suspension Order took effect" and that "under s 440K(1) of the Act, you are not entitled to exercise any of the functions of the civic office of a councillor". The Secretary asserted that the period of Cr Thaler's suspension will expire on 23 May 2026. It is improbable that the Tribunal will have published its decision with respect to Cr Thaler's appeal against the suspension prior to 23 May 2026. That likelihood has no bearing on the decision with respect to the two questions identified above.

1. On 4 March 2026, Cr Thaler filed submissions in support of his application. Cr Thaler clearly and unequivocally asserted that the period of the suspension order having expired on 5 February 2026, he was not currently suspended, and, without conceding the point, could only be suspended if the Tribunal made orders to that effect when determining his appeal against the suspension order. Cr Thaler submitted that the "relevant dates" of the suspension order having not been "altered, amended or changed", the order had effectively run its course and that, unless the outcome of his pending appeal determined otherwise, he was able to exercise the rights of a councillor.
2. Cr Thaler relied on the decision of the Tribunal of 19 February 2026 (Councillor Andrew Thaler v Secretary, Department of Planning, Housing and Infrastructure [2026] NSWCATOD 21) with respect to a previous three month suspension order made by the Secretary which Cr Thaler had unsuccessfully sought to have stayed pending the determination of his appeal against that suspension order. Cr Thaler submitted, correctly, that the Tribunal set aside the Secretary's decision and made other protective orders, not involving his suspension.
3. Cr Thaler submitted that he had been "fully punished, his electors deprived of representation and not of this effect can be cured or undone notwithstanding the operation of the LGA that Councillor Thaler is now considered to have NOT been suspended" (original emphasis) by the Tribunal's decision of 19 February 2026.
4. With respect to Cr Thaler, although these matters may be relevant to a further stay application, if he requires one, and it is within power, and may perhaps be relevant to his appeal against the suspension order, they do not inform the determination of the first question. The two questions involve issues of statutory interpretation.
5. Cr Thaler submitted that the contention of the Secretary of 26 February 2026 was "absurd, as it is ONLY the Tribunal or the Supreme Court that now has the power to alter, vary, revoke or uphold the order dated 29th October" (original emphasis). Whilst Cr Thaler's submissions with respect to "power" may be correct, no part of the determination of the current questions involves attempting to do any of those things.

1. The Secretary's submissions of 5 March 2026 engaged in detail with the question of the Tribunal's power to make declarations. The issue was canvassed during the Directions Hearing on 6 March 2026, during which the Tribunal suggested that, whilst Cr Thaler's application may have been expressed in terms suggestive of a claim for declaratory relief, properly understood, Cr Thaler was seeking a finding that he was not suspended. The Tribunal accepts that it has no power to grant declaratory relief, notwithstanding that, s 5(1)(e) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) includes "making a declaration" in the definition of decision.
2. In the absence of enabling legislation, the LGA in this case, not investing the Tribunal with jurisdiction and power to grant declaratory relief, the Tribunal accepts that, unlike the Supreme Court pursuant to s 75 of the Supreme Court Act 1970 (NSW), it has no independent jurisdiction or power to do so. The Secretary submitted that, if the Tribunal found that Cr Thaler was not currently suspended, all that it could permissibly do would be to dismiss his application for a stay for want of jurisdiction. In the absence of power to make a binding declaration to that effect, if Cr Thaler is not currently suspended, the Tribunal would not have power to grant his stay application, and it would be dismissed.
3. If, as the Secretary contends, Cr Thaler is suspended and will continue to be suspended pending the determination of his appeal against the suspension order, then, unless Cr Thaler successfully prosecutes a stay application, he will remain suspended until that time.
4. The Secretary submitted that there was no "jurisdictional" impediment to Cr Thaler prosecuting a fresh application for a stay pursuant to s 440L(3) of the LGA. The Secretary further submitted, correctly in the Tribunal's view that, if Cr Thaler pressed a stay application, the Tribunal must form "an opinion" as to whether Cr Thaler's suspension was spent.

1. In further submissions filed pursuant to the Tribunal's directions of Friday, 6 March 2026, the Secretary submitted at [4] that the two questions posed on 6 March 2026 "are matters for the Member hearing the merits of Counsellor Thaler's application for a stay and they should not be decided separately". The Tribunal does not recall that submission being made by the Secretary on 6 March 2026. In any event, unless the first question is decided in favour of the Secretary, there will be no occasion for Cr Thaler's stay application to be heard. Conversely, the issue having been extensively agitated on 6 March 2026, to accede to the submission now made by the Secretary would be procedurally unfair to Cr Thaler, and likely to render nugatory the fruits of a successful stay application if Cr Thaler needs to make one. The Secretary's submissions engage with the questions identified by the Tribunal on 6 March 2026. To accede to the Secretary's current position could result in a hearing which would have no utility if Cr Thaler is found to be currently suspended and be contrary to the "guiding principle" articulated in s 36(1) of the CAT Act.
2. The Secretary submitted at [5] that only the second question was relevant to the Tribunal's power to decide Cr Thaler's stay application, and that the answer to that question "does not depend upon whether Cr Thaler is suspended, so question 1 should not be answered". The Tribunal does not accept that proposition. If Cr Thaler is not suspended, then there is no occasion for a stay application and no power for the Tribunal to hear such an application.
3. The suggestion that question 2 be redrafted "to avoid the need to refer to question 1" in the terms suggested by the Secretary is an unhelpful conflation of the two questions which the Tribunal posed on 6 March.
4. The Secretary made further submissions with respect to the Councillor's contention that the suspension order had "expired", and therefore there was nothing to stay. The Secretary contends at [11] that nothing in the terms of s 440L(3) or (3A) of the LGA prevents the Tribunal from staying a suspension order after the period has ended and that there is no basis upon which the power to stay orders conferred by s 440L is limited to suspensions that have not yet expired.
5. With respect to whether Cr Thaler is currently suspended the Secretary reiterated the contention at [17] that the answer to question 1 does not arise. The Tribunal does not accept that proposition. Clearly, whether the Tribunal has power to grant a suspension depends upon whether there is anything to suspend. The Secretary contends that there is, Cr Thaler submits that there is not. The Secretary's contention at [18] that there are "no agreed facts between the parties on Cr Thaler's stay application" and that there has not been any evidence tendered is not accepted. Determining question 1, the answer to which effectively determines question 2, involves statutory interpretation, and does not turn on any facts which are in dispute, or capable of being in dispute. Those material facts are few in number and have been recorded earlier in these reasons. As the Tribunal repeatedly reassured the parties on 6 March 2026, if Cr Thaler needs to prosecute his stay application, that application will not be heard by Deputy President Hennessey ADCJ, Principal Member Coleman SC ADCJ who heard Cr Thaler's previous appeals, or Senior Member Titterton OAM, who will hear Cr Thaler's pending appeal.
6. With respect to the submissions of the Secretary at [20], Cr Thaler has articulated the basis on which he claims that he is not suspended in the clearest of terms. Cr Thaler's contention is that his suspension having run its course or expired, he does not need a stay of the suspension order.
7. The Secretary submitted at [21] that:

"(i) The power to impose a suspension arises solely under s 440I. A suspension is only in effect when that power is operative. Because a stay under s 440L(3) holds the s 440I decision in abeyance, the machinery in s 440K cannot run in the absence of an operative mechanism. It is impossible for the commencement mechanism to run independently of the decision it is meant to give effect to.

(ii) As no part of the suspension period accrued before the stay was set aside on 23 February 2026, the 3 month suspension commenced from that date and is now operative."

1. The Tribunal does not appear to have received any further submissions from Cr Thaler. With no disrespect to Cr Thaler, it is difficult to see how he could have more succinctly articulated the basis of his claims than he did in the written submissions referred to above.

1. Section 440I(2)(g) of the LGA provides that the Secretary may "by order, suspend the councillor from civic office for a period not exceeding 3 months". Section 440K(2) provides that the period of suspension under an order made by the Secretary commences on the date 7 days after the service of the order on the councillor, or the date specified in the order for the commencement of the period of suspension, whichever is the later. It is not in contest in this case that, pursuant to s 440K(2) of the LGA, the commencement date was the date 7 days after 29 October 2025.
2. It is apparent from the use of the expression "may take" in s 440I(2) of the LGA that the Secretary has a discretion whether to suspend a councillor from civic office and, if deciding to do so, has a discretion as to the duration of such suspension, provided that it does not exceed 3 months (Ward v Williams (1955) 92 CLR 496; [1955] HCA 4).
3. The terms of s 440K(2) make clear that the Secretary has no discretion with respect to when a suspension order commences. Section 440L(3) provides that the Tribunal "may stay any decision" made by the Secretary "until such time as the Tribunal determines the appeal". It is not in dispute that the power conferred by s 440L(3) of the LGA involves the exercise of a discretion which is not unfettered (Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685).
4. Without expressing a concluded view, or needing to, the terms of s 440L(4) of the LGA appear to empower the Tribunal hearing an appeal against a suspension order to "amend" the date on which a period of suspension commences, whether that be the suspension ordered by the Secretary, or some lesser suspension ordered by the Tribunal. Other than in that context, the Tribunal only has power to stay a suspension order pending the determination of an appeal pursuant to s 440L(3) of the LGA.

1. Section 33 of the Interpretation Act 1987 (NSW) provides:

In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

1. The purpose of the provisions of the LGA which are concerned with the conduct and misconduct of councillors is not expressly stated in the LGA. It is reasonably apparent that the purpose of the provisions of the LGA concerning the conduct of councillors, including the provisions of the LGA with respect to performance improvement orders and the range of disciplinary orders which can be made pursuant to s 440I(2) of the LGA is to maintain standards of conduct appropriate for persons entrusted with the important role which councillors play in the administration of civic affairs, and, where those standards are breached, to provide effective protective orders and sanctions, including, pursuant to s 275(1A) of the LGA, automatic suspension for a period of five years in the event of a councillor being suspended from civic office on three occasions within a five year period.
2. In Carr v Western Australia (2007) 232 CLR 138; [2007] HCA 47 at [5], Gleeson CJ said that the purposive approach to statutory interpretation:

"may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem with interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act. Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation achieves a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose."

1. In Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1; [2012] HCA 3 French CJ, Hayne, Kiefel and Bell JJ observed at [28] that "[i]n construing a statute it is not for a court to construe its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose", and that the statutory purpose is derived from a consideration of the scheme of the Act as a whole, the respective functions of relevant parts of the Act and any regulatory requirements of the Act.
2. In Esso Australia Pty Ltd v Australia Workers' Union (2017) 350 ALR 404; [2017] HCA 54 at [52], Kiefel CJ, Keane, Nettle and Edelman JJ said the Court's ability to construe a statutory provision:

"...in a manner that departs from the nature and ordinary meaning of the terms of the provision in the context in which they appear is limited to construing the provision according to the meaning which, despite its terms, it is plain that Parliament intended it to have. It is not the Court's function to attempt to overcome unintended consequences of the intended operation of a provision by construing the provision as if it had a meaning that Parliament did not intend it to have. To do so would go beyond the judicial function of construing legislation according to established precepts of statutory construction and into the legislative realm of amending the Act by reference to what it may be supposed Parliament might have provided if it had considered the specific circumstances before the Court".

1. In SAS Trustee Corporation v Miles (2018) 361 ALR 206; [2018] HCA 55, at [64] Edelman J reiterated that the High Court had held that the "task of statutory construction must begin and end with the text of the statute". In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, at [78] McHugh, Gummow, Kirby and Hayne JJ said that "ordinarily" the "legal meaning" of words in a statute will "correspond" with their "grammatical meaning", but will "not always", and that the "context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning".
2. The Secretary submits that it cannot have been the legislative intention that, securing a stay of a suspension order, in this case for its duration, pending the determination of an appeal against the suspension order could render nugatory the Secretary successfully defending the suspension order on appeal. If Cr Thaler's contention is accepted, other than by the, undoubtedly significant, confirmation or generation of a further "strike" against him for the purpose of s 275(1A) of the LGA, the Secretary's success in the appeal would be rendered nugatory.
3. Cr Thaler submits that, if the suspension order has not expired, and he requires, but is refused a stay, and is wholly or partially successful with his appeal against the suspension order, as occurred with the second suspension order, he will have served a period of suspension which the decision in the appeal will have found that he ought not. With respect to Cr Thaler, the fallacy in that contention is that the Tribunal hears his appeal against the suspension order de novo. No part of its determination involves finding error on the part of the Secretary (Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9). Although to a quite limited extent, it is instructive that, when a custodial sentence is imposed on a convicted offender, and bail is refused pending the hearing of what proves to be a successful appeal, the offender will have spent time in custody which, having regard to the outcome of the appeal, he or she should not have (see Semmens v The King [2026] VSCA 9). There is thus nothing unusual about the effect of the construction of the legislation for which the Secretary contends.
4. Section 440I(2) of the LGA provides a hierarchy of protective measures which the Secretary may order in cases of misconduct. The most serious, both in its own terms and, as a result of its potential pursuant to s 275(1A) of the LGA, is an order suspending a councillor from civic office for a period of up to three months. Such action has a number of purposes. In this case, those purposes include protecting council officers and staff and members of the community from offensive, intimidatory or humiliating conduct by Cr Thaler abusing his status as a councillor, and leaving Cr Thaler in no doubt that such conduct is not tolerated. Reassuring council officers and staff, and the public that the Secretary takes misconduct by councillors seriously and takes appropriate steps to prevent, are also purposes of the provisions. It is difficult to accept that the legislature would have intended the provisions of the LGA, with respect to misconduct, to be interpreted as enabling a councillor who is suspended for three months for serious misconduct of the kind, relied on by the Secretary with respect to the suspension order, could defeat that order by obtaining a stay of the suspension order pending the determination of his or her appeal against it. On balance, given that Cr Thaler is but one of a number of councillors, the mischief likely to result from his being suspended pending the determination of his appeal, if the suspension order is not stayed, is significantly less than the mischief which would be likely to be created if, as Cr Thaler contends, he is now free to resume civic office. If Cr Thaler is right, and he is able to resume civic office, and continue to do so until the determination of his appeal, it is difficult to suggest what provisions of the LGA the Secretary could rely upon to prevent him from doing so.

1. Pursuant to s 440K(2) of the LGA, the suspension order did not commence until seven days after 29 October 2025. The suspension order was stayed on 31 October 2025. The suspension order had not then commenced. The stay of the suspension order on 31 October 2025 meant that it did not trigger the commencement of the three-month suspension period as, prior to its commencement, the order to which it gave effect had been stayed. In those circumstances, for as long as the suspension order was stayed, the operation of s 440K(2) could not be triggered. On facts which cannot be disputed, the Tribunal finds that Cr Thaler's suspension, having not commenced, has not expired, or run its course. Unless Cr Thaler secures a further stay, his suspension will run its three-month course, unless, before it does, the Tribunal deciding his appeal against it determines otherwise.
2. Interpreting the provisions of the LGA in this manner is not contra-indicated by the context in which the words of the provisions find expression. For the reasons recorded above, doing so promotes the purpose or objects of the provisions of the LGA with respect to misconduct by councillors. Cr Thaler's interpretation of the relevant provisions would not do so and could be conducive to the mischief which the Tribunal has identified. Cr Thaler contends that finding that he is suspended may mean that he serves a suspension which, on appeal, is not confirmed by the Tribunal. If that happens, it will be because Cr Thaler's stay application is refused on its merits.
3. As nothing turns on it for present purposes, it is unnecessary to consider whether, upon the discharge of the stay of the suspension order on 23 February 2026, Cr Thaler's suspension commenced, or whether s 440K(2) of the LGA was then enlivened and, seven days thereafter, Cr Thaler's suspension commenced. Either way, Cr Thaler is currently suspended, and is entitled to have his stay application determined on its merits. Although contending that any such application should be dismissed, the Secretary does not dispute that the Tribunal has jurisdiction and power to grant Cr Thaler a further stay. A stay is an interlocutory order and gives rise to no res judicata issue estoppel (Australian Broadcasting Corp v Lenah Game Meats Pty Ltd (2002) 208 CLR 199; [2001] HCA 63).
4. The Secretary sought an extended timetable for filing of material and submissions with respect to Cr Thaler's application for a further stay of the suspension order which, if granted, would be likely to result in Cr Thaler's application being decided after his suspension had run its course. The Tribunal does not accept that it is appropriate to make directions in those terms, for several reasons. First, the timetable would almost certainly render nugatory the fruits of success if Cr Thaler persuades the Tribunal to grant a further stay of the suspension order. Second, the material filed in the original stay application, the Secretary's application to discharge it on 21 January 2026, and the material filed in the current application, mean that, subject to filing any further evidence and submissions, there is, put bluntly, little more that could usefully be said by either party with respect to Cr Thaler's new stay application. Third, accepting the Secretary's timetable would in all the circumstances be contrary to s 36(1) of the CAT Act.
5. The evidence relied upon by the Secretary, the contents and authenticity of which are not able to be disputed, being publications generated by Cr Thaler himself, can readily be compiled and put into evidence, to the extent that they have not already been. The Tribunal considers that, provided that the parties can rely upon such evidence as has previously been filed with respect to the stay of the suspension order and its discharge, and submissions in support thereof, and such further evidence as either party wishes to adduce, or submissions which either party wishes to make, within a short time period, the stay application should be heard as soon as reasonably practicable. It is not in contest that Deputy President Hennessey ADJC and Principal Member Coleman SC ADCJ should not determine the merits of Cr Thaler's stay application. Rather than risk his recusal in the appeal, it would be preferable that Senior Member Titterton OAM not be appointed to hear the stay application.

(1) The Registry is requested to list the stay application of Councillor Andrew Thaler filed on 26 February 2026 (stay application) for hearing by the Tribunal on the first available date on or after 23 March 2026.

(2) By 5pm on 20 March 2026, each party is to advise the Tribunal and the other party of the evidence and submissions filed by that party since 29 October 2025 which are intended to be relied upon at the hearing of the stay application and file and serve such further evidence or submissions as the party intends to rely upon at the hearing of the stay application.

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.