LOCAL GOVERNMENT — misconduct by councillor — orders made suspending councillor for three months set aside by Tribunal — whether Tribunal misconceived its function — whether misapplication of principle of totality — whether orders made by Tribunal manifestly inadequate — whether proceedings should be remitted to Tribunal for determination in accordance with law
Quick Take
1The criminal sentencing 'totality principle' — and in particular its dichotomy between discrete acts and a single episode of offending — does not translate in any closely analogous way to the discretion to impose disciplinary action for councillor misconduct under the Local Government Act 1993 (NSW); the automatic five-year disqualification triggered by a third suspension under s 275(1A) is structurally different from cumulation of criminal sentences.
2On merits review of a disciplinary suspension under s 440L, the Tribunal's task is to make the correct and preferable decision; characterising separate instances of misconduct as part of a 'single course of conduct' does not of itself render a second suspension 'problematic', and perceived procedural unfairness in the bifurcation of investigations does not relieve the Tribunal of that task.
3Where a councillor's sustained, deliberate and unrepentant social media misconduct — involving crude personal attacks on fellow councillors and members of the public — is found to be at the more serious end of the spectrum, disciplinary action falling short of suspension may be manifestly inadequate.
