Thaler v Secretary, Department of Planning, Housing and Infrastructure [2026] NSWCATOD 47;

1. These proceedings concern the third suspension notice issued by the Secretary to Cr Thaler.

1. On 5 May 2025, the Secretary was satisfied that Cr Thaler had engaged in misconduct and ordered that he be suspended for three months and apologise for his misconduct (Thaler No.1).
2. The Secretary's decision was confirmed by the Tribunal following an appeal: Thaler v Secretary, Department of Planning, Housing and Infrastructure [2025] NSWCATOD 88.
3. Full details of the misconduct are set out in the decision. In summary, it consisted of Facebook posts and other material published by Cr Thaler and directed at fellow Councillors and others in March 2025.

1. On 28 July 2025, the Secretary again decided to take disciplinary action against Cr Thaler and ordered that Cr Thaler be suspended for a period of three months and apologise for his misconduct (Thaler No.2).
2. Cr Thaler appealed the Secretary's decision. The Tribunal found that the misconduct formed a continuous course of conduct with the conduct in Thaler No.1 and set aside the suspension. Cr Thaler was reprimanded and ordered to apologise for his misconduct: Councillor Andrew Thaler v Secretary, Department of Planning, Housing and Infrastructure [2026] NSWCATOD 21.

1. As I have said, the Secretary made a decision on 29 October 2025 to again suspend Cr Thaler from office for three months and ordered that he apologise for his misconduct (Thaler No.3).
2. The asserted misconduct includes Facebook posts made by Cr Thaler between 8 May 2025 and 30 August 2025. I will not set out the full details but note that they include:

(1) Claims that others hate him because he is "an unvaccinated strongminded independent man, who does not lick their boots. I will not comply. I will not yield. I will no longer be polite...Phuque the OLG... I will not comply ... nor will I lick their boots".

(2) Called a former co-worker a ''piece of shit" and "an arsehole".

(3) Gave a member of State Parliament the nickname "Suck a Dick" and said that he had laughed when he read that she wanted an apology and told her to get "on your knees ... and beg for it".

(4) Called a fellow Councillor "fat" and a "liar" and stated"[s]he's huge and that's fat shaming her. But it's also fact ... She almost walks sideways through the doors. She certainly walks sideways through the kitchen because our little kitchen is so tiny at the council. Fact."

(5) Said a retired member of State Parliament was a ''fat bitch" and "the queen of Ozempic".

(6) Used homophobic mimicry by using what Cr Thaler called a "gay voice" to ridicule a co-worker.

(7) Said about a Council employee "I don't think I did misgender them because I'm pretty sure ... is actually a man".

(8) Called a fellow Councillor "the ugly one".

1. The asserted misconduct also includes Cr Thaler's failure to apologise, which was required by the order made by the Secretary in Thaler No.1.

1. A search conducted up to 19 March 2026 found further posts made by Cr Thaler after 20 February 2026, which was the date on which the Respondent filed evidence in reply to these proceedings. These posts were livestreamed videos uploaded on 20 February 2026, 22 February 2026, 26 February 2026, 27 February 2026, 28 February 2026, 6 March 2026, 7 March 2026, 8 March 2026, 15 March 2026, 17 March 2026, 18 March 2026, 19 March 2026.

1. Section 440L(3) of the LG Act provides that the Tribunal may stay any decision made by the Secretary until such time as the Tribunal determines the appeal.
2. The principles relevant to a stay application were canvassed in both Thaler v Deputy Secretary, Local Government, under delegation from the Secretary, Department of Planning, Housing and Infrastructure [2025] NSWCATOD 63 (Thaler Stay (No.1)) and Thaler v Secretary, Department of Planning, Housing and Infrastructure [2025] NSWCATOD 111 (Thaler Stay (No.2)). They are:

(1) Section 440L of the LG Act gives the Tribunal a discretion whether or not to grant a stay. However, there is no guidance as to what matters the Tribunal ought to consider in deciding whether to grant the stay: Thaler Stay (No.1) at [5]; Thaler Stay (No.2) at [13].

(2) Factors relevant to the exercise of discretion in s 440L(3) may be implied from the subject matter, scope and purpose of the LG Act, including that the Tribunal's jurisdiction is of a disciplinary nature and is in part protective, both of the public and the maintenance of high standards in the ranks of a particular occupation, here local councillors: Thaler Stay (No.2) at [14]-[17].

(3) The onus is on Cr Thaler to demonstrate a proper basis for a stay that is fair to all parties: Thaler Stay (No.1) at [7]; Thaler Stay (No.2) at [18].

(4) The Tribunal must weigh the balance of convenience and the competing rights of the parties: Thaler Stay (No.1) at [7]; Thaler Stay (No.2) at [18].

(5) The Tribunal does not, generally speaking, speculate as to the strength or otherwise of the prospects of success of an appeal, although it may make some preliminary assessment about whether an appellant has an arguable case: Thaler Stay (No.1); Thaler Stay (No.2) at [19].

1. I accept the submission made by counsel for the Respondent that the LG Act establishes a disciplinary framework designed to protect the public, maintain confidence in local government, and uphold minimum standards of conduct. A stay is not granted to shield a councillor from the consequences of their own behaviour; it is granted only where doing so is consistent with the protective function of the regime.

1. On the appeal, Cr Thaler will rely on the decision of the Tribunal in Thaler No.2 where the Tribunal set aside the Thaler No.2 suspension because, it found, the conduct underpinning Thaler No.1 and Thaler No.2 formed a single course of misconduct.
2. Cr Thaler says that the same reasoning applies to the conduct in Thaler No.3 - he asserts that there are only two allegations relied on in the Secretary's suspension orders which are not intimately date-related to matters complained of in Thaler No.1 and Thaler No.2. These two matters occurred in August 2025 and, he submitted, are merely comments and opinions shared in a Facebook video conversation and are political in nature.
3. Cr Thaler says that this demonstrates that his appeal against Thaler No.3 raises, at a minimum, a serious question to be tried and thus he should not be suspended until the appeal is heard.
4. In respect of this submission I bear in mind that it is not my role to determine this issue but to form a view as to whether Cr Thaler has an arguable case at the hearing of the appeal in April 2026.
5. In Thaler No.2 the Tribunal accepted that Cr Thaler's misconduct underlying the decisions in Thaler No.1 and No.2 should be seen as analogous to a "single episode of criminality". In arriving at this finding the timeframe within which the misconduct occurred, the similarity in the type, intent and effect of the misconduct, and the timeline with respect to the requesting and providing of Departmental reports and suspension decisions informed that finding.
6. In those decisions all of the conduct occurred in March 2025 and the conduct was, it was held, similar. The effect of the decision in Thaler No.2 was that all of the conduct should have been considered by the Secretary before making the decision in Thaler No.1.
7. For the purposes of this decision I decline to find that this analysis shows that Cr Thaler has established that he has an arguable case on the appeal on this ground.
8. The conduct underlying Thaler No.3 occurred in May, July, August and September 2025. Cr Thaler's posts are directed not only at persons who were the subject of Thaler No.1 and No.2 but others. Further I do not accept that making repeated, albeit later, comments about the same people, means that it is likely that the Tribunal will find, again, that it is the one course of conduct.
9. In further support of this submission Cr Thaler relied on the decision by the Secretary to file an Intention to Appeal the decision in Thaler No.2 in the Court of Appeal. If, submitted Cr Thaler, the Secretary loses the Court of Appeal challenge, the procedural unfairness finding stands and the third suspension, which suffers from the same defects plus additional ones, will almost certainly fall on identical grounds.
10. I do not accept this submission. I have not determined this stay application by assuming that the decision in Thaler No.2 is right or wrong but on the likelihood of the same reasoning being applied.
11. Cr Thaler also submitted that, where the foundation of a decision is being contested in separate proceedings, enforcement of decisions built on that foundation should be stayed to avoid the risk of inconsistent findings. However, while I accept this legal principle, I am not considering an application to vacate the hearing date of the appeal and do not consider the submission relevant.
12. Cr Thaler says that provisions in the industrial relations legislation providing for freedom from victimisation apply to his statements. However, the LG Act sets out the procedure for addressing misconduct. I was not taken to any legislation or legal authority which suggest that this procedure is subject to the industrial relations legislation. I decline to find that this submission provides a basis on which to find that Cr Thaler has an arguable case.
13. Lastly, Cr Thaler submitted that the maximum criminal penalty for offensive language is a $500 fine while the cumulative regulatory penalty for misconduct is approximately 12 months exclusion from civic office, which was is grossly disproportionate. This may may be a matter which Cr Thaler proposes to raise on the appeal. In the absence of submissions explaining how this is relevant in the context of a statutory scheme, I decline to find that provides a basis on which to find that Cr Thaler has an arguable case.

1. At the appeal, Cr Thaler will rely on the following matters as raising substantial grounds of procedural unfairness:

(1) Of the 16 breach allegations in the departmental report relied on by the Secretary, 12 contained errors in the Code of Conduct clause citations.

(2) When the errors were discovered, internal departmental documents show that three options were considered:

(a) Re-notify the Applicant with corrected allegations (rejected);

(b) Abandon the affected allegations (rejected);

(c) Silently drop the wrong clauses and proceed without re-notifying the Applicant (chosen).

(3) The officer who made the original clause errors was the same officer who recommended Option 3 - effectively deciding how to handle her own errors. This, it was submitted, is a plain conflict of interest.

(4) The Show Cause Notice served under s 440H of the LG Act contained the wrong clauses. Cr Thaler said his response addressed those clauses. The Secretary then made the suspension order on the basis of different clauses, without giving him an opportunity to respond to the corrected charges.

1. The fact that the Secretary's delegates knew of this procedural error and deliberately chose to ignore it shows clearly, it was submitted, that the Secretary brought the Thaler No.3 proceedings for an improper purpose, being an automatic 5 year disqualification. This is a reference to the provisions in the LG Act which lead to this automatic disqualification after the service of three Misconduct Notices.
2. Cr Thaler says these are not technical or trivial matters because the right to know the case against you and respond to it before a decision is made is a core principle of procedural fairness.
3. However, I accept the submission by counsel for the Respondent. These asserted errors were not explained or the subject of evidence, other than by an oral reference to a large bundle of documents apparently sent on the morning of the hearing.
4. I decline to find that this establishes that Cr Thaler has an arguable case on the appeal on this ground.

1. Cr Thaler submitted that, unless the suspension is stayed, his constituents will be deprived of their elected representative for a further three months, having already been deprived of representation for approximately 6 months across the three suspensions. As he will have served most of the suspension before the appeal is heard, the appeal will be rendered nugatory even if he succeeds.
2. The force of this submission is lessened by information contained in Cr Thaler's own Facebook posts where he has said:

"Well, Cooma Show, hardly anybody said g'day or come and said g'day. So there's a shift going on in the community where I'm the bad man not to be talked to. And so we've come back to this point where I just want to say to Monaro, you're on your fucking own. You're a pack of morons."

1. In addition, it is clear from the legislation that suspension is one of the consequences Parliament intended when misconduct is found.
2. However, in determining the exercise of the discretion I do take into account that Cr Thaler will not be there to represent his constituents during the period of suspension, although I do not give this much weight.

1. The Secretary has described the events since March 2025 as an escalating course of conduct.
2. Cr Thaler denies that there is any escalating pattern in his conduct to warrant continued suspension.
3. Cr Thaler says Thaler No.2 was set aside which he describes as meaning that the sanction (being the suspension) was found to be unwarranted.
4. This is a mischaracterisation of what occurred. For example, the Tribunal held in Councillor Andrew Thaler v Secretary, Department of Planning, Housing and Infrastructure [2026] NSWCATOD 21 at [151]:

"...Cr Thaler's undisputed conduct was offensive, humiliating and disgraceful, particularly so in the case of ... involved an abuse of his position as an elected representative for his constituents and was a gross betrayal of their trust in him. Conduct of the kind engaged in by Cr Thaler is indefensibly unacceptable. The Tribunal's refusal to stay the second suspension order, resulting in Cr Thaler being suspended for three months publicly denounced his misconduct..."

1. Cr Thaler submitted that the fact that the Secretary is appealing Thaler No.2 and he is considering appealing Thaler No.1 means that any attempt to describe his conduct as escalating is built on a house of cards.
2. However I have no hesitation in finding there has been an escalating pattern of conduct. It started in March 2025, continued throughout 2025 and into 2026 up until earlier this month. This is not a case where there is some doubt about what was said. The conduct relied on is in posts and videos created by Cr Thaler in circumstances where he still stands by the comments he has made. He continues to engage in making repeated abusive, harassing, and derogatory remarks. Over time the subject of his posts and videos have widened to include more people. I accept that this conduct demonstrates a real and ongoing risk of harm to individuals and to public confidence in the Council and that there is a risk of further harm to councillors, staff and members of the public in the future.
3. In addition, previous actions taken to attempt to moderate or cease Cr Thaler's behaviour have not been successful. He has been suspended. He has been reprimanded. He has been ordered to apologise, which he refuses to do. He has given undertakings which he has not kept. Indeed, his behaviour has intensified after each intervention. His attitude has been discussed earlier in these reasons - he "will not comply ... will not yield". I agree with the submission made by counsel for the Respondent that this demonstrates that lesser measures have failed and that suspension is necessary to protect the integrity of the Council, the public, Councillors and employees of the Council.
4. I also agree with the submission made by counsel for the Respondent that granting a stay in the face of such a pattern would undermine the purpose of the disciplinary scheme and would allow a councillor who has repeatedly breached the Code, ignored prior orders, and escalated his misconduct to continue exercising civic office while the appeal is pending. That outcome is antithetical to the protective function of the legislation.
5. I am satisfied that each of these matters is a highly significant factor weighing strongly against the grant of a stay.

1. Cr Thaler submitted that the proper interpretation of the LG Act meant that his period of suspension continued to run while the suspension was stayed, so that the period of suspension expired on 5 February 2026.
2. This submission was the subject of a previous application to this Tribunal by Cr Thaler. On 12 March 2026, the Tribunal did not accept the submission. The consequence of that decision is that the period of suspension finishes after the appeal hearing in April 2026_:_ Thaler v Secretary, Department of Planning, Housing and Infrastructure [2026] NSWCATOD 37 at [45].

1. Taking all of my findings into account, I am not persuaded that Cr Thaler has shown that the Respondent's decision on 29 October 2025 to suspend him from civic office for a period of three months should be set aside.
2. I make the following orders:

(1) The Application for a Stay is refused.

(2) The Application is dismissed.

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.