On 5 July 2017, the NSW Civil and Administrative Tribunal (Tribunal) handed down its decision in Chief Executive of the Office of Local Government v Bagnall (No.1)  NSWCATOD 106. This decision explored whether the Tribunal had jurisdiction to consider an application made by the Chief Executive of the Office of Local Government (the Applicant) under s 440J(2)(b)of the Local Government Act 1993 (the Act).
Section 440J of the Act sets out alternative powers the Applicant has to deal with allegations of misconduct made against a councillor. Pursuant to section 440J(2)(b) of the Act, the Applicant can instead of taking disciplinary action against a councillor, refer the matter to the Tribunal for consideration.
The Respondent, a councillor of Tweed Shire Council (Council), was involved in an incident with another councillor at Council’s chambers. The Respondent faced three charges in the Local Court relating to the incident which were dealt with in that jurisdiction.
The other councillor involved in the incident subsequently lodged a complaint against the Respondent under the Council’s Model Code of Conduct (the Code) relating to the same conduct. The matter was ultimately referred to the Applicant, who approved the preparation of a departmental report into the conduct of the Respondent (the Report) and submitted the Report to the Tribunal, commencing the s 440J(2)(b) application.
The Respondent contended that the Tribunal lacked the jurisdiction to hear the application, relying on the provisions of the Procedures for the Administration of the Code (the Procedure) adopted by the Council. The Procedure stated that:
- a complaint made under the Code may be referred to an external agency or body (e.g. to the Police, NSW Ombudsman, Independent Commission Against Corruption); and
- that referral of the matter to an external body or agency shall finalise consideration of the matter under the Code, unless the Council is advised otherwise by the referral agency or body.
The Respondent’s contention was that the facts relevant to the matter had previously been referred to the Police and as there was no advice from the Police to the Council otherwise, the matter was therefore finalised. However, the Police involvement was not due to the Council referring the complaint.
The Tribunal held that it had jurisdiction to consider the application. This was for reasons including that if the Respondent’s arguments were accepted, any referral of the matter under complaint e.g. at a preliminary investigation level, prohibits and invalidates any further consideration or referral of the matter. That would include, prohibiting consideration and referral at the “departmental level”, or by the Applicant. The Tribunal held the Act and Procedure did not convey or intend this construction.
The Tribunal also considered the Respondent’s “no double jeopardy” claim for completeness, and dismissed it as irrelevant as the purpose and nature of criminal proceedings and sanctions are distinct from occupational disciplinary matters.