Burner v City of Salisbury; Bawden v City of Salisbury

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Judicial Review)

BURNER v CITY OF SALISBURY; BAWDEN v CITY OF SALISBURY

[2025] SASC 179

Judgment of the Honourable Justice McDonald

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - BIAS - APPREHENSION OF BIAS

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - IMPROPER PURPOSES

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - UNREASONABLENESS

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - RELEVANT CONSIDERATIONS

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS

LOCAL GOVERNMENT - REGULATION AND ADMINISTRATION - COUNCILLORS AND MEMBERS

In November 2022, the applicants (Ms Bawden and Ms Burner) were elected as councillors for the City of Sailsbury (‘the Council’). From January 2023, the applicants engaged in conduct that was alleged to have breached the behavioural standards for council members established pursuant to s 75E of the Local Government Act 1999 (SA) (‘the Act’). The conduct resulted in a number of complaints against the applicants which were investigated by the Council.
The applicants failed to attend numerous Council meetings held between March 2023 and June 2023. For the meetings held between March and April 2023, reasons were provided by the applicants. From about April 2023, Ms Burner sought a leave of absence. The request was considered but not granted by Council. By June 2023, the applicants had failed to attend three or more consecutive ordinary meetings of the Council, without leave from the Council to do so. As a result, in June 2023, the applicants were removed as councillors of the Council by unanimous vote pursuant to s 54(1)(d) of the Act.
These are applications for judicial review of those decisions. The applicants seek an order quashing the decisions and a declaration that the decisions are void and of no effect. Further, Ms Bawden seeks an order quashing the decision of Council to refuse her a leave of absence and a declaration that the refusal is void and of no effect.
The respondent contends that it took a conservative and cautious approach to its application of s 54(1)(d) of the Act. In relation to Ms Bawden’s leave of absence, the respondent contends that there was no obligation upon the Chief Executive Officer to consider the request and that the information given by Ms Bawden at that time was contradictory.
Held: The applications are dismissed.
Local Government Act 1999 (SA) ss 6, 8, 54, 59, 74, 75B, 75E, 91, referred to.
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; Isbester v Knox City Council (2015) 255 CLR 135; Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438; Stollery v Greyhound Racing Control Board (1972) 128 CLR 509; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CQZ15 (2021) 284 FCR 455; Johnson v Johnson (2000) 201 CLR 488; The Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128; Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 218; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Ryan v Heiler [1990] NSWSCA 160; Ryan v Heiler (1990) 69 LGRA 307; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; Burgess v Minister for Immigration and Border Protection (2018) 259 FCR 197, considered.

BURNER v CITY OF SALISBURY; BAWDEN v CITY OF SALISBURY
[2025] SASC 179

Civil: Judicial Review

McDONALD J.

Grace Bawden and Severina Burner (‘the applicants’) were elected as councillors for the City of Salisbury (‘the Council’) in November 2022. Both were removed from office as members of the Council following a unanimous decision of the other Council members at a special council meeting on 13 June 2023.
On 19 June 2023, the applicants filed originating applications for judicial review challenging the decisions made by the Council. Although their applications are generally very similar, and both relate to decisions made at the special council meeting, there is a difference in the orders that they seek. Both applicants challenge the exercise of power under s 54(1)(d) of the Local Government Act 1999 (SA) (‘the Act’) to remove them as members of the Council on the basis that they had been absent, without leave of the Council, from three consecutive ordinary council meetings. Ms Burner seeks the quashing of that decision and a declaration that the decision is void and of no effect. Ms Bawden seeks the same orders, however, she also seeks orders quashing a decision, made at that same meeting, to refuse her a leave of absence from meetings held on 27 March 2023 and 24 April 2023 and a declaration that the refusal is void and of no effect.

Background

There is a considerable history that sits behind these applications. Given the nature of the issues raised by the applicants, and the arguments made by the respondent, it is necessary to set that history out in some detail.
The applicants were elected to office as members of the Council in the 2022 local government elections conducted in accordance with the Local Government (Elections) Act 1999 (SA). Neither had previously held such an office.
The applicants attended the first ordinary meeting of the newly elected Council on 28 November 2022. At that meeting, the Council moved to schedule ordinary meetings at 6.30pm on the fourth Monday of every month.
From about January 2023, it was alleged that the applicants engaged in conduct that resulted in a number of complaints central to the dispute, that led to a series of events resulting in their removal from office.

The complaints

On 1 January 2023, Ms Burner shared a post on Facebook that juxtaposed a picture of a futuristic metropolis entitled “It’s called a smart city”, collaged with a picture of a concentration camp endorsed “Because if they called it a concentration camp, you might not want to live there”. Alongside the post, Ms Burner included the caption “A concentration camp with pretty interactive lights and music coming to a place near you. Oh what fun” (‘the Concentration Camp Post’).
The Council received four complaints about the Concentration Camp Post between 14 January 2023 and 2 February 2023.
On dates unknown, but at a similar time, Ms Bawden posted two statements on Facebook which read “Not-so-SMART Cities are being rolled out by stealth and in tiny increments you don’t even know about or have a say in, from LED lights, CCTV cameras with Facial Recognition, sensors and microphones”, and “YES THIS IS ABOUT GLOBAL ENSLAVEMENT and if you are more worried about your footpaths, you should worry much more about your children’s future” (‘the Enslavement Post’).
Ms Bawden’s posts were picked up by and reported in the Messenger North Newspaper. That report included a collage comprising of the Enslavement Post of Ms Bawden, along with the caption of the Concentration Camp Post of Ms Burner.
On 20 January 2023, the Council received a complaint about the Enslavement Post.
On that same date Ms Bawden published, as her Facebook cover photo, an image of the backs of four suited men, passing money and documents to each other. One of the men had been labelled ‘Councillor’ and appears to be giving money to a man labelled ‘WEF/UN’ in exchange for some documents (‘the Corruption Post’). The image is headed with “WE HAVE INVESTIGATED OURSELVES AND FOUND OURSELVES TO BE INNOCENT - ***Future SMART City Councils***”.
On 21 January 2023, Ms Burner commented on an endorsement under Ms Bawden’s Corruption Post, with a graphic of a megaphone projecting the words “Say it Loud” (‘the Corruption Endorsement’). On 23 January 2023, a complaint was made about the Corruption Post. The Corruption Endorsement also attracted two complaints around that time.
On 22 January 2023, Ms Bawden posted an article on Facebook entitled “STILL DON’T UNDERSTAND SMART CITIES? Here’s a Hitchhikers Guide…”. The article, amongst other things, makes conspiracy type allegations about smart cities, councillors and “other Globalist entities”. It states “In the longer term these people will become the equivalent of Kapos (Jewish prison guards) whose role will be to keep you compliant with the most draconian measures the world will ever know, as it moves “Lockstep” with the directives of multinational Corporations, World Bank, World Economic Forum (WEF), World Health Organisation (WHO) and United Nations (UN)” (‘the Kapos Post’).
The following day two complaints were made about the Kapos Post.
A special council meeting was held on 23 January 2023. During that meeting an exchange took place between Ms Burner and another, Cr MM. That exchange became the subject of a complaint by a third party. Included in that complaint was an allegation that Ms Burner had yelled inappropriately. The complaint referred to Ms Burner’s conduct towards Cr MM as “disgraceful”.
The applicants left the meeting early, during a break.
On 25 January 2023, Ms Burner responded to a Facebook post made by Ms Bawden which said “Mobbing behaviour by Councillors is never okay. Yours are selling out the interests of local residents to foreign interests just so that they can get a hot pizza delivered in 5 minutes by drone”. Ms Burner’s response included a ‘laughing face emoji’, the words “So true …” and the words “… we should be ashamed of not cowering to evil trash” (‘the Evil Trash Post’). The Evil Trash Post was the subject of a complaint.
On 29 January 2023, an employee of the Council posted a public notice to the effect that the Salisbury Council chambers would close at 4.30pm because of security concerns surrounding a SMART Cities protest. This fell on the scheduled date of the ordinary council meeting. This led to a series of posts by both applicants effectively mocking the public notice saying things like “Its ‘extremist’ to push back agains [sic] Globalist ideals of enslavement” and “… it appears to me that [the Mayor and most Councillors] are deliberately shutting down anyone who disagrees with them … Don’t trap people in a 15 minute city, and they won’t be fearful”. The applicants’ various posts became the subject of complaints.
On or about that same day, the ordinary meeting was rescheduled to take place on 31 January 2023 and the agenda for that meeting was published by the Council. On the agenda was a “Motion on Notice: Right to Peaceful Assembly” which proposed a resolution requesting the Mayor to write to the City of Onkaparinga expressing (among other things) that the reported views of the applicants “do in no way represent the views of the City of Salisbury Council” (‘the apology motion’).
There was amongst others, another motion on the agenda being “Motion on Notice: Community Education of Council’s SMART City Technology”.
On or before 31 January 2023, Ms Burner published a response to the apology motion. She said “Before I get silenced tonight, I want the world to know that I DO NOT consent to the bullying and intimidation of the Advertiser nor anybody else. I do NOT apologise to the Onkaparinga Mayor because I believe she and her Council deliberately antagonised their constituents who just wanted a LITTLE common decency and respect by allowing them to hear what is going down in the Public Meeting. I say that the news about angry protestors was fabricated LIES”.
The ordinary meeting took place on 31 January 2023 as rescheduled. Both of the applicants attended. The apology motion was debated. The resultant Council resolution included a request for Ms Burner to publicly apologise “to the Mayor of Onkaparinga”.
The Council then moved on to the motion in relation to community education about SMART technology. Ms Burner was given the opportunity to speak against the motion for over 30 minutes, on the invitation of other Council members (the normal time limit was five minutes). In the course of which she said, amongst other things:[1]
… Elon Musk has worked on a brainchip. He has one. He has put it in his robots. There are robots - four bots that that went a bit funny and they, as the people tried, the workers tried to disassemble two of them. They did that successfully, and while they were disassembling the third one, the 4th one used its AI technology, which is what you’re installing to get on the net and find out how to repair itself. And then it killed 9 employees. …
[1] FDN 40, Affidavit of Felice D’Agostino made on 15 July 2024 at 56 (‘D’Agostino Affidavit’).
A motion without notice was then moved by another councillor in relation to a “International Day of Commemoration in Memory of the victims of the Holocaust”. The applicants absented themselves on the basis of a material conflict of interest. The debate referred to, amongst other things, Ms Burner’s Concentration Camp Post and Ms Bawden’s Kapos Post. The Council resolved to condemn those publications and to request that the applicants publicly apologise for their comments.
By letters dated 20 February 2023, the Mayor and the Chief Executive Officer (‘the CEO’), enquired whether each of the applicants would be willing to provide the requested apology. No response was forthcoming.
On 24 February 2023, Ms Burner emailed a media release and reference book to the Council entitled “Council Uses Stasi-Style Tactics to Prove It Values Citizens’ Freedom to Protest”. The following references were contained within it: “In a “trial by voodoo”, Council has taken it upon itself to punish Councillors exercising their Constitutional right to participate in public meetings, gatherings or protests by forcing them to apologise for doing just that”, and that the Council had “exact[ed] a public lynching of dissenting Councillors, including making slanderous & defamatory accusations in very public forums through flagrant breaches of Council meeting procedures”.[2]
[2] FDN 13, Affidavit of Paul St Leger Kelly made on 21 August 2023 at 726 (‘Kelly Affidavit’).
Ms Burner described the Council as “tyrants” who “detest … freedom & democracy”.
On 25 February 2023, a joint statement/media release was emailed by the applicants to the Council. It was entitled “Councillors Condemn City of Salisbury for Suppressing Free Speech”. The contents related to the apologies which the Council by resolution had requested. It included: “We are deeply sorry that the Council believes it can trample on our Constitutional rights & deny us the ability to represent our constituents” and “it is ironic that Council claims to pay its respects to Holocaust survivors whilst behaving like total dictators and tyrants”.[3]
[3] D’Agostino Affidavit at 228.
The following day a further joint personal statement/media release was emailed by the applicants to the Council. It was entitled “Councillors Forced to Apologise for Their Opposition to Fascist Ideologies”. Although couched in terms of an apology, the statement reflected a defiant attitude and instead purported to make an apology on behalf of the Council to their constituents. By way of example, amongst other matters that are the subject of the “apology” is a statement that the Council “Feels it is justified in regulating anyone’s God-given right to free speech in a free & democratic country, by using tactics seen only under dictatorships”.[4]
[4] D’Agostino Affidavit at 233.
On or about that date, the agenda for the ordinary meeting scheduled on 27 February 2023 was circulated. It included a “Motion on Notice: Chip technology” that contained a request that Ms Burner apologise to Elon Musk for her brain chip speech, parts of which had, by that time, been reported in the Advertiser. In addition, that she apologise publicly at the upcoming Council meeting for providing inaccurate and misleading information regarding Elon Musk and his technological developments and for “repetitively providing inaccurate and misleading statements to the community”.[5]
[5] Kelly Affidavit at 125.
An ordinary Council meeting was held on 27 February 2023. Cr KG spoke in favour of the relevant motion and three other councillors spoke in support. Ms Burner then spoke and alleged that Cr KG had lied in an attempt to smear her name. From this point, the meeting appears to have degenerated, becoming chaotic with various motions, interjections and increasing hostility on the part of Ms Burner in particular. Ms Burner was asked to leave for five minutes on the basis that she had disrupted the meeting. The Council subsequently resolved to suspend Ms Burner for the remainder of the meeting on the basis that she had behaved in an improper manner.
Ms Bawden then spoke to the relevant motion without interruption, following which, she sought leave of the meeting and then left.

The applicants commence failing to attend at Council meetings

On 1 March 2023, Ms Burner sent an email to the CEO and the Manager Governance of the Council, claiming that the Council was actively seeking to punish her. In that context, she enquired:[6]
Can someone also follow up on facilitating the meeting tonight from the safety of our own home?
And, how do I formally seek stress leave? I’m seeing a GP this afternoon.
[6] Kelly Affidavit at 739.
The Manager Governance responded one hour later and said:[7]
Hi Severina,
I hope you’re going ok.
Further to your request, a Teams link was created and I understand this was e-mailed to you. Please advise if this did not come through.
Just click on the Teams link at the time of the start of the meeting, and you can then attend the briefing session online.
In relation to your leave request: Council can resolve to grant you leave of absence. You can e-mail the CEO with such request and the duration (start and end date).
If this is something you would be interested in, please advise and I will send you the details around this.
With kind regards,
…
[7] Kelly Affidavit at 198.
On 3 March 2023, in response to the investigation into the complaints about the Concentration Camp Post and the Corruption Endorsement, Ms Burner sent an email stating that she would “not dignify such allegations with a response”. Following that, on 5 March 2023, Ms Burner posted an image on Facebook of a person contorted into the position of a swastika, with a caption of “Me when I’m asked to kneel and apologise for being right”. The word “right” had been superimposed over the word “white” (‘the Swastika Post’).
On 8 March 2023, the date of a special Council meeting, Ms Burner sent an email to the Mayor and CEO on behalf of herself and Ms Bawden. In the email she said the following:[8]
[8] Kelly Affidavit at 762.
Dear Gillian and John
Please accept apologies from myself and Cr Bawden indefinitely.
We are both seeking instruction on formally applying for stress leave.
I no longer wish to be present with people who wish me ill health and then beat me when I’m down. As though it wasn’t clear I have suffered some kind of mental trauma at our last council meeting, you choose to continue the witch-hunting.
If this was any other Australian workplace, we would never have been treated like this.
FOR THE RECORD...
I AM NOT A NAZI!
I HAVE NEVER BEEN A NAZI SYMPATHISER
YOUR MEDIA COMMENTARY TO THAT EFFECT IS SLANDER AND DEFAMATION.
Regards
The special council meeting went ahead on 8 March 2023. In the minutes of the meeting the applicants were recorded as an apology and under the heading “Leave of Absence”, there was the entry of “Nil”.[9]
[9] Kelly Affidavit at 136.

At the meeting, the Council debated what it might do about the Swastika Post. The Council resolved to: (a) request (not require) Ms Burner to publicly apologise at the next Council meeting (the 27 March meeting); and (b) request that Ms Burner undertake two nominated human rights training courses at her own cost, and two free human rights training courses, by 30 April 2023. Ms Burner did none of those things.
On 9 March 2023, the CEO responded to Ms Burner’s email from the day before. The response included:[10]
… Can you please clarify if you are indicating you will not be attending Council meetings, Council committee meetings, CEO briefings and other information or workshop sessions indefinitely.
Please note that pursuant to section 54(1)(d) of the Local Government Act 1999 you may be removed from office by the Council on the ground that you have been absent, without leave of the Council, from three or more consecutive ordinary meetings of the Council. Providing an apology for a Council meeting does not constitute a leave of absence from the Council.
Can I suggest that if you are indeed intending not to attend Council meetings that you seek a leave of absence from the Council. You may request a leave of absence by putting your request in writing to me and/or the Mayor. If you do request a leave of absence this would be considered by the Council at the next ordinary meeting of the Council. Whilst I cannot pre-empt the Council’s decision I suggest if you do request a leave of absence that you specify a period of time you will be absent rather than indefinitely.
If Cr Bawden also intends to request a leave of absence it is necessary for Cr Bawden to make that request herself.
…
[10] Kelly Affidavit at 763.
On 16 March 2023, the CEO forwarded the same email to Ms Bawden.
I pause there to observe that the necessary steps required to seek a leave of absence could not have been made clearer than was conveyed in these emails.
On or about 19 March 2023, both of the applicants provided a medical certificate to the CEO. The certificate for Ms Bawden was from Dr Kandasamy, it stated that she was “unfit for work” for the period between 19 March 2023 to 2 April 2023.[11] The certificate for Ms Burner was from Dr Aslam, it stated that she was “unfit for her normal work” from 19 to 25 March 2023.[12]
[11] Kelly Affidavit at 782.
[12] Kelly Affidavit at 785.
On 22 March 2023, having received the medical certificates, the CEO wrote to the applicants. Both emails contained the following:[13]
Please note you’re not deemed to be in City of Salisbury employment and no such medical certificate is required or requested.
As clarified before, Leave of Absence can be requested.
Pursuant to section 54(1)(d) of the Local Government Act 1999 you may be removed from office by the Council on the ground that you have been absent, without leave of the Council, from three or more consecutive ordinary meetings of the Council. Providing an apology for a Council meeting does not constitute a leave of absence from the Council. Therefore I suggest that if you are indeed intending not to attend Council meetings that you seek a leave of absence from the Council. You may request a leave of absence by putting your request in writing to me and/or the Mayor. If you do request a leave of absence this would be considered by the Council at the next ordinary meeting of the Council. Whilst I cannot pre-empt the Council’s decision I suggest if you do request a leave of absence that you specify a period of time you will be absent.
If you’re not intending to submit a leave of absence, and rather provide an apology at the meeting for being absent, please advise accordingly.
Failing this you will be listed as “absent”.
[13] Kelly Affidavit at 780, 783.
In the case of Ms Burner, the CEO added:
As expressed before, if you have any specific concerns around Elected Member behaviour, please escalate this together with supporting evidence in accordance with the Behavioural Management policy.
On 22 March 2023, the applicants emailed a co-signed letter to the CEO, dated 21 March 2023, with a heading “Re: Public Interest Disclosure”. The letter commences:[14]
We are writing to make a disclosure under the Public Interest Disclosure Act 2018 (PID Act) regarding what we believe is irrefutably evidence of corruption, misconduct & maladministration in public administration by the City of Salisbury.
[14] Kelly Affidavit at 811.
The applicants went on to make complaints of “extreme bullying, humiliation, provocation, denigration & harassment by Council”, stating this behaviour was instigated by five council members.
Although the letter makes allegations of an extremely serious nature, there were no particulars to the complaints and no examples identified or incidents referred to. Rather, there are repeated allegations of misconduct by the Council in highly inflammatory terms. The applicants provided little by way of substance to back up their allegations.
On 27 March 2023, Ms Burner wrote to the CEO about a number of issues, the list included:[15]
…
5.Please send apologies for the Council meeting tonight.
6.Please action my request for sick leave or [sic] at least 2 months.
…
8.I am attempting to heal my soul, whilst still navigating the constant attacks against me and the many legal cases I’m forced to act on.
…
[15] Kelly Affidavit at 791.
An ordinary council meeting took place on 27 March 2023, neither of the applicants were in attendance.
At the meeting, the Corruption Post, the Concentration Camp Post and the Corruption Endorsement were the subject of debate. The Council resolved to require Ms Bawden to present a public apology at the next Council meeting, to be included in the meeting minutes, and to publish an apology in the same manner that she had published the Corruption Post (i.e. by Facebook post). In relation to Ms Burner, the Council resolved to require her to present a public apology at the next Council meeting, to be included in the meeting minutes, and to publish an apology in the same manner that she had published the Concentration Camp Post (i.e. by Facebook post). Neither of the applicants complied with any of the resolutions.
The following day, the CEO wrote to Ms Burner responding to her 27 March 2023 email, again addressing the issue of sick leave. On this topic he said:[16]
In relation to point 6 of your requests re sick leave I draw your attention to my email titled private and confidential dated 22^nd March at 3.06pm (attached to this email) wherein I noted the fact that a work sick leave is not the appropriate means of seeking leave of absence and identified the appropriate and necessary course of action of seeking the leave of Council for being absent from Council for whatever period you seek . …
[16] Kelly Affidavit at 790.
Later on 28 March 2023, Ms Bawden wrote to the CEO and said “I have had to work extra shifts this week to make ends meet financially…”.[17]
[17] Kelly Affidavit at 787.
At about 10.00am on 24 April 2023, Ms Bawden sent an email to the CEO that said:[18]
Just found out my puppy has broken his back leg and needs surgery this afternoon urgently… I won’t be able to attend tonight because of this unexpected emergency… send my apologies. Thank you.
Also attached is my new STRESS LEAVE CERTIFICATE from my Doctor..
[18] Kelly Affidavit at 794.
Attached was another doctor’s certificate from Dr Aslam stating that Ms Bawden would be “unfit for her normal work from Wednesday 19 April 2023 to Friday 28 April 2023 inclusive. Please accommodate as STRESS LEAVE”.
The CEO responded to the email two hours later at 12.00pm. In his response, after offering his condolences about the dog, he reiterated his advice of 16 and 22 March 2023 in relation to not being in a position to attend the Council meeting and offering apologies for her non-attendance.
Importantly, the CEO drew Ms Bawden’s attention to s 54(1)(d) of the Act and said:[19]
Please note that pursuant to section 54(1)(d) of the Local Government Act 1999 you may be removed from office by the Council on the ground that you have been absent, without leave of the Council, from three or more consecutive ordinary meetings of the Council. Providing an apology for a Council meeting does not constitute a leave of absence from the Council. Therefore I suggest that if you are indeed intending not to attend Council meetings that you seek a leave of absence from the Council. You may request a leave of absence by putting your request in writing to me and/or the Mayor. If you do request a leave of absence this would be considered by the Council at the next ordinary meeting of the Council. Whilst I cannot pre-empt the Council’s decision I suggest if you do request a leave of absence that you specify a period of time you will be absent.
(Emphasis in original)
[19] Kelly Affidavit at 796.
Again, the CEO could not have been clearer about the necessary process to obtain a leave of absence.
Later that same day, at 4.53pm Ms Burner sent an email to the CEO requesting a leave of absence. The email relevantly said:[20]
As per my email dated 8 March, and I believe on more than one occasion, I have written to express my need for leave from Council.
Given that I don’t see this situation changing overnight, I would like to formally request the Council to allow me three month’s leave. It is not my intention to subject myself to any further bullying, threatening or misconduct by council and it is clear that tonight’s Confidential meeting has been orchestrated to exact further reprisals against Cr Bawden and myself.
[20] Kelly Affidavit at 805.
The ordinary Council meeting went ahead as scheduled on 24 April 2023. Neither of the applicants were in attendance.
Ms Burner’s request for leave of absence was considered and debated at that meeting. The minutes of the meeting disclose that concerns were raised by members of the Council about the absence of evidence supporting Ms Burner’s allegations of bullying etc.[21] Concerns were also raised about Ms Burner’s ongoing failure to attend meetings to represent her community in circumstances in which she continued to be paid and was still posting on Facebook as a councillor.[22]
[21] D’Agostino Affidavit at 156.
[22] D’Agostino Affidavit at 157.
The following is recorded in the outcomes of the meeting:[23]
That Council
1.Notes the request and reasons for Leave of Absence from Cr Burner as provided to the CEO and Mayor “I would like to formally request the Council to allow me three month’s leave. It is not my intention to subject myself to any further bullying, threatening or misconduct by council”
2.Does not grant a Leave of Absence.
…
That Council
1.Notes the reasons for the Leave of Absence request from Cr Burner and requests the CEO to write to Cr Burner requesting that she provides details of the unsubstantiated allegations in accordance with the reporting provisions of the Model Behaviour Management Policy and again provides information to Cr Burner on how to make such complaints.
[23] Kelly Affidavit at 374.
Of note, there is no challenge to this decision.
On 28 April 2023, the CEO wrote to Ms Burner to advise her that her leave of absence had not been granted. In the letter the CEO advised Ms Burner that in relation to her allegation of bullying, it was open to her to employ the process set out in the Model Behaviour Management Policy (a copy of which was attached), should she wish to report any allegations of misconduct by the Council. Ms Burner did not respond to this invitation.
The next ordinary meeting of the council took place on 22 May 2023. Neither applicant attended. During the meeting there was a motion without notice in relation to the failure of the applicants to attend three consecutive ordinary council meetings. It was noted in the minutes that the applicants were aware of s 54(1)(d) of the Act as they had been explicitly reminded of this statutory provision. The Council moved to request that the Mayor and CEO write to the applicants, seeking a written explanation for their ongoing absence from Council meetings by 12.00pm, 29 May 2023, and advising them that their responses would form part of a public report to Council for further consideration.
It was during the course of the debate that took place at the meeting on 22 May 2023 that some adverse comments were made about the applicants by other councillors. These comments are the subject of some of the complaints made by the applicants about how the process leading up to their removal was carried out.
I set out the comments relied upon, in the context in which they were made, as the context will be important when I come to consider the submissions made about the impugned comments.
1.“… And it’s disappointing to know that through my interactions with many members of the public, including [Cr CB’s] ward and [Cr DH’s] ward, which my understanding is not being very well represented by some of my colleagues that we’re talking about tonight Councillor Bawden and Councill Burner. They’re receiving the same allowance that we all are. And to me, in my opinion, and it’s my view only that they don’t appear to be doing the same amount of work. That’s quite evident in number of meetings that they’ve missed and as we had one motion speaks that this is now the third General Council meeting, the committee meetings is one thing, that’s fine, but General Council is where all the full decisions are made and it’s really important that all of us as a council make an effort to actually comply with what our public elected us to do and that is to come in here to deliberate, participate in discussions, come up with a solution that better serves our community and they haven’t done that and I’m not too sure why. So I look, I don’t want to harp on about it because you just every council meeting seems to take up a lot of time on topics similar to this. But I do request that you write to both of them and seek a formal response as to why they’ve not turned up for the last three council meetings and that that response is returned to council so we can consider it moving forward”.[24] (Cr AG).
2.“… I whole fully support this motion having the 100% attendance rate for the last term I’m actually pretty upset about the attendance rate for some councillors for this term. Being an elected member is there to represent your community and I’ve we’ve mentioned this on multiple occasions that it doesn’t seem like the two wards are actually being represented 100%. Now I’m happy to pick up the slack and I know other councillors are happy to pick up the slack at the moment. But these two wards deserve representation from both councillors and I’m happy to support this motion 100%”.[25] (Cr KG).
3.“… It’s disappointing that we’re at this stage where we’re having to obviously take some serious such serious measures. But I think it’s important that we do give these two councillors an opportunity to provide an explanation and certainly be able to inform the council of some of the things they’ve been up to. And certainly some of the reasons that’s why they’ve been able to unable to sort of I suppose participate in what we consider traditional council functions. But I’m much rather actually like to speak at this meeting and just like to thank [Cr CB] and [Cr DH] for the hard work they’ve been doing over these last couple of months. Certainly this term. I’ve been lucky enough to know those [Cr DH] and [Cr CB] during the last term of council and know they’re hard workers. But I know that particularly very recently they’ve been extremely hard workers they have had to pick up the slack, they have had to dig that little bit deeper and we all know that councillors rewarding role. It’s a time consuming role. … So I’d certainly like to just emphasize my thanks to [Cr CB] and [Cr DH] for their continued efforts in in making sure that Central Ward and North Ward receive a degree of representation that they deserve. I’m certainly looking forward to hearing what response we might receive”.[26] (Cr PJ).
4.“… We are all very busy people. We all have lives and we all came onto this together for I thought we did for the better. As everyone around the table knows and maybe members of the gallery might not know but I’m a shift worker and I work at night. I work until 11:30 sometimes, quite well beyond depending the overtime I would get. And I know I’ve been an apology a few times to a couple of committee meetings. I’ve never missed a general council meeting. It’s a commitment that I made when I when I put myself up for nomination for election that I will make myself available and I think it’s this particular motion, I think, and we all talk about it every week. We know we notice the empty chairs. … So I think, I think that report will hopefully allow them to reflect on their attendance, or should I say lack thereof and hopefully prompt my colleagues to come and join. Because l’d love to have a good working relationship with everyone, like [unclear] everyone is in this room. Unfortunately, I haven’t been afford the opportunity to have any sort of relationship with these others, with Councillor Burner and Councillor Bawden, just because they’ve not been here and they’ve not made themselves available to that. So I’d be interested to see what this report brings back”.[27] (Cr AG).
[24] D’Agostino Affidavit at 173.
[25] D’Agostino Affidavit at 174.
[26] D’Agostino Affidavit at 174-175 (Emphasis added).
[27] D’Agostino Affidavit at 175-176.
As requested by the Council, on 23 May 2023 the CEO wrote to the applicants in the terms suggested. In particular, the applicants were requested to provide written explanations for their ongoing failure to attend Council meetings by 12.00pm, 29 May 2023. Neither applicant responded in that time frame.
A special Council meeting was called to take place at 6.30pm on 29 May 2023. Notice was given to each of the applicants about the meeting. Without explanation neither applicant attended.
At the special Council meeting it was noted that there had been no explanation from the applicants about their absences. The Council determined that it intended to exercise its power under s 54(1)(d) of the Act to remove the applicants on the basis of their three consecutive absences from ordinary Council meetings, subject to the receipt and consideration of further submissions from the applicants.
The Council requested the Mayor and CEO to write to the applicants seeking a submission to be made to the Council by Friday, 2 June 2023 as to why the Council should not exercise its powers under s 54(1)(d) of the Act to remove them from office as members of the Council.
A further special Council meeting was called to take place at 6.30pm on 5 June 2023 to consider any submission made by the applicants and what further action should be taken.
On 30 May 2023, the Mayor and CEO wrote to the applicants, drawing their attention to what had occurred at the special Council meeting the evening before. It was explained that the purpose of the letter was to specifically request a submission about why the applicants should not be removed from the Council. The letter drew attention to the fact that the Council intended to remove the applicants subject to their response.
Again, the applicants did not respond within the nominated timeframe.
At 2.15pm on 5 June 2023, agendas for the special meeting to take place that day were forwarded to the councillors, including the applicants.
This appears to have finally spurred the applicants into action because at 4.44pm, on the same date, the applicants’ solicitor emailed a letter to the solicitors of the Council.[28]
[28] Kelly Affidavit at 865. The letter is incorrectly dated 6 June 2023.
In that letter the solicitor stated:[29]
Notwithstanding that the deadline has passed, Councillors Bawden and Burner each would like to make submissions in respect of the special resolution to be considered by the Council tonight and request an extension of time in which to make those submissions to close of business Friday [9][30] June 2023.

The letter provided no explanation as to why the applicants had failed to make any submission prior to this date.

[29] Kelly Affidavit at 866.

[30] The letter initially said 6 June 2023, but was subsequently corrected.

The applicants’ solicitor’s letter was considered at the special Council meeting. After some debate, it was determined to accommodate the request for further time. The Deputy Mayor observed:[31]
… I am more than happy to move this motion because I think it’s absolutely important that given the nature of the decision that Council is going to be asked to consider tonight as a result of a unanimous motion at the last Council meeting. Giving consideration to any action in relation to Section 54(1)(d) of the Local Government Act is quite a serious matter and it shouldn’t be done lightly and I think as democratically elected members it is incumbent on us to ensure that someone who is democratically elected to public office has every opportunity and right to be afforded procedural fairness. It should be noted as part of the motion that I put forward tonight that Council has provided procedural fairness on more than one occasion now. And we are actually going even further Madam Mayor. Although the request for an extension certainly was outside of the previous time that we allowed a response for, it’s only fair that given that we have received a response albeit at the 11^th hour that we afford the individual member the opportunity to provide that response. …
[31] D’Agostino Affidavit at 185.
On 9 June 2023, the applicants’ solicitor provided their submissions. Common to both sets of submissions were the following explanations:
·They had limited experience as councillors and the motions had arisen relatively early in their terms;
·They were then the subject of a number of complaint investigations;
·Fellow elected members had made comments within Council meetings and to the media concerning their conduct as councillors (no particulars were given);
·Concerns and consequences from perceptions of bullying and associated anxieties are well known;
·They had previously identified “the toll” of the present environment (no particulars given);
·The Mayor and the CEO should have inferred that “the issues” would have been exacerbated by attendance at various meetings;
·It was “entirely unreasonable and inappropriate” to expect them to attend the relevant meetings and it would have been detrimental to their health;
·The substance of Council business at those meetings made their attendance inappropriate; and
·The Council should “move past childish taunting and bullying over differences in ideology and expression”.
In addition to this, Ms Bawden raised:
·She had never received advice on how to apply for leave due to email issues; and
·She had medical certificates for the 27 March 2023 and 24 April 2023 meetings and consequently the Council was obliged to grant leave of absence for those dates.
Neither letter addressed the applicants’ failure to provide the apologies as required by the Council, nor to failing to undertake the training that the Council had also required. The letters demonstrated no contrition and did not suggest that the applicants would moderate their conduct such as to comply with the Behavioural Standards for Council Members (‘Behavioural Standards’) in the future. Each of the applicants continued to portray themselves as the victims and failed to take responsibility for their conduct.
A special Council meeting was held at 6.30pm on 13 June 2023. The applicants’ responses were attached to the agenda and circulated in advance of the meeting.
The agenda contained two items. These were the “Absenteeism Cr Severina Burner” and “Absenteeism Cr Grace Bawden”. The agenda comprised of two parts, the second being confidential. At the outset of the agenda there was a discussion about the need for confidentiality. It stated that pursuant to s 83(5) of the Act, the CEO had indicated that if the Council so determined, the agenda items could be considered in confidence. It was determined that the meeting would be conducted in private on the basis that the principle that the meeting should ordinarily be conducted in a place open to the public, had been outweighed because the meeting “relates to information the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (living or dead)”.
It is of note that the agenda was lengthy and set out a very detailed history of the events that had led up to that point, including the applicants’ explanations for what had taken place.
The agenda recommended that one of two options be adopted. These were that the applicants be reminded “of the importance of attending Council meetings as a member of the governing body of the Council and in order to represent residents, businesses and ratepayers of the City of Salisbury” (option 1); or to remove the applicants from office under s 54(1)(d) of the Act with immediate effect (option 2).
Prior to the commencement of the meeting there was some informal discussion between members of the Council and others present. The content of some of those conversations is a central limb of the applicants’ apprehended bias ground.
The meeting and the informal premeeting conversations were recorded. Only audio is available for about the first 13 minutes of the premeeting. From that point, there is also video footage available. I have been provided with a copy of that recording as well as transcripts.
The video component commences during the informal conversations and continues to the end of the formal proceedings.
I made the following observations about what occurred during both the informal and formal components of the meeting that took place on 13 June 2023:
·The audio recording commences with indistinct chatter. It is not clear how many people are present or who they are.
·Various footsteps can be heard to suggest the arrival of others.
·General, everyday social exchanges take place about innocuous matters, like what people did over the weekend.
·There is some light-hearted banter of the type to be expected amongst people known to each other.
The video commences:
·Only a small portion of the room is captured on the video, showing six to eight people at any given time.
·To the left of the screen is a bench at which various Council staff members are seated. The Deputy Mayor is also seated at this table, although is generally out of vision. The talking that can be heard on the audio recording continues once the video camera is turned on and, at that point, it is evident that those engaged in those conversations are seated at the staff table.
·There is a second bench, at right angles with the staff bench, running across the screen. It is agreed that this is the bench at which councillors were seated, although only two can be seen in the footage. There is no informal conversation taking place at, or coming from, that bench. The mood appears sombre and one of the councillors appears to be engrossed in the paperwork in front of her. Prior to the commencement of the formal meeting, there appears to be no interactions between the councillors except when one is brought a drink.
·From the commencement of the formal proceedings, the mood turns more serious and there is no further joking or banter.
There is no dispute that the meeting was over very quickly and there was no substantive debate on the motion to remove the applicants, which was carried unanimously.

Legislative context – Local Government Act 1999 (SA)

There are a number of sections of the Act that are relevant to a consideration of the disposition of these applications.
Most central is s 54(1)(d). Section 54 – “Casual vacancies” provides for circumstances in which the office of a member of a council becomes vacant. It was s 54(1)(d) that the respondent relied upon, which allows for the removal of a member of council “on the ground that he or she has been absent, without leave of the council, from three or more consecutive ordinary meetings of the council”.
A further section of the Act that has a particular relevance to an assessment of the competing arguments is s 75B – “Dealing with general conflicts of interest”. Subdivision 4 of the Act sets out a regime to deal with the issue of conflicts of interest arising for Council members. It does so by dividing conflicts of interest into “general conflicts” and “material conflicts”. A material conflict of interest involves a benefit or loss to a Council member or identified related entity due to the outcome of a matter considered by the Council. There is no suggestion that any material conflict of interest arose on the facts of this case.
The issue was one of general conflicts of interests. There is no dispute that a number of the Council members developed a general conflict of interest in relation to decisions about Ms Bawden and/or Ms Burner over the course of the relevant events. Section 74(1) of the Act provides that:
… a member of a council has a general conflict of interest in a matter to be discussed at a meeting of the council if an impartial, fair-minded person might consider that the member’s private interests might result in the member acting in a manner that is contrary to their public duty.
A “private interest” is defined as “any direct or indirect interest of a member that does not derive from their public duty and does not include an interest that is only a matter of personal opinion or belief”.[32] A “public duty” is defined as “the responsibilities and obligations that a member has to members of the public in their role as a member”.[33]
[32] Local Government Act 1999 (SA) s 74(2).
[33] Ibid s 74(2).
Section 75B sets out the manner in which a council member must conduct themselves in the event that they believe that they have a general conflict of interest. It provides:
75B—Dealing with general conflicts of interest
(1)If a member of a council has a general conflict of interest in relation to a matter to be discussed at a meeting of the council, the member must deal with the interest in a transparent and accountable way and, in particular, must inform the meeting of—
(a)     the member’s interest in the matter; and
(b)     whether or not the member proposes to participate in the meeting in relation to the matter; and
(c)     if the member proposes to participate in the meeting in relation to the matter—
(i)how the member intends to deal with the general conflict of interest, including whether the member intends to vote on the matter; and
(ii)the member’s reasons for participating (and, if relevant, voting) in relation to the matter.
(2)If a quorum at a meeting cannot be formed because a member of a council proposes to exclude themself from the meeting in order to comply with subsection (1), the member will not be taken to have contravened subsection (1) by participating (including by voting, for example) in the meeting in relation to the matter if the attendance of the member, together with any other required number of members, forms a quorum for the meeting.
(3)If a member of a council discloses a general conflict of interest in a matter to be discussed at a meeting of the council, the following details must be recorded in the minutes of the meeting:
(a)     the member’s name;
(b)     the nature of the interest, as described by the member;
(c)     the manner in which the member dealt with the general conflict of interest;
(d)     if the member voted on the matter, the manner in which the member voted;
(e)     the manner in which the majority of persons who were entitled to vote at the meeting voted on the matter.
(4)To avoid doubt, it is declared that non-participation in a meeting of a council is not the only way in which a member of the council may appropriately deal in a transparent and accountable way with a general conflict of interest of the member in a matter to be discussed at the meeting.
(Emphasis added)
It is to be observed that this section appears to endeavour to strike a balance between transparency and pragmatism, and certainly does not suggest that in circumstances of a general conflict the relevant council member should absent themselves from the room. To the contrary, it is envisaged that council members with a general conflict may remain in the room and participate in the meeting.
In addition to the “removal” and “conflict” sections of the Act, there are a number of other, more general sections which relate to the power and purpose of a council and its members, which sit as a backdrop to these particular sections.
Section 6 of the Act sets out the “Principal role of a council”:
A council is, under the system of local government established by this Act, established to provide for the government and management of its area at the local level and, in particular—
(a)to act as a representative, informed and responsible decision-maker in the interests of its community; and
(b)to provide and co-ordinate various public services and facilities and to develop its community and resources in a socially just and ecologically sustainable manner; and
(c)to encourage and develop initiatives within its community for improving the quality of life of the community; and
(d)to represent the interests of its community to the wider community; and (e) to exercise, perform and discharge the powers, functions and duties of local government under this and other Acts in relation to the area for which it is constituted.
Section 59 of the Act specifies the “Roles of members of councils”:
(1)The role of a member of a council is—
(a) as a member of the governing body of the council—
(i)to act with integrity; and
(ii)to ensure positive and constructive working relationships within the council; and
(iii)to recognise and support the role of the principal member under the Act; and
(iv)to develop skills relevant to the role of a member of the council and the functions of the council as a body; and
(v)to participate in the deliberations and activities of the council; and
(vi)to keep the council’s objectives and policies under review to ensure that they are appropriate and effective; and
(vii)to keep the council’s resource allocation, expenditure and activities, and the efficiency and effectiveness of its service delivery, under review; and
(viii)to ensure, as far as is practicable, that the principles set out in section 8 are observed; and
(ix)to participate in the oversight of the chief executive officer’s performance under the council’s contract with the chief executive officer; and
(x)to serve the overall public interest; and
(b) as a person elected to the council—to represent the interests of residents and ratepayers of the council, to provide community leadership and guidance, and to facilitate communication between the community and the council.
(2)A member of a council may, with the principal member’s authorisation, act in place of, or represent, the principal member.
(3)A member of a council has no direct authority over an employee of the council with respect to the way in which the employee performs his or her duties.
(Emphasis added)
Section 75E – “Behavioural standards” enables the Minister to establish behavioural standards for council members. Section 75E(3) requires a member of the council to comply with the behavioural standards set by the Minister. It was some of these behavioural standards that it was alleged that the applicants had breached.

Grounds of review

The applicants rely on a number of grounds. These are apprehended bias, improper exercise of power and legal unreasonableness, wrong question and/or wrong issue and/or misunderstanding of the law, failure to give proper, genuine and realistic consideration to the merits, and an absence of procedural fairness.
Although the applicants maintain each of the grounds of review, as this matter has progressed the focus has in large part settled on the issue of apprehended bias. For that reason I will first consider whether this ground has been established before considering the others.

Apprehended bias

It is the applicants’ contention that there are a number of aspects of the respondent’s conduct which support a conclusion that a fair-minded lay observer, properly informed of all relevant facts, might reasonably apprehend that the Council might not approach the exercise of power with a mind open to persuasion. These are:
1.The attitude demonstrated towards the applicants at the 22 May 2023 meeting, by statements made by councillors, demonstrating a “slant or a leaning” against the applicants.
2.The tone and manner in which the councillors conducted themselves before and during the meeting on 13 June 2023.
3.Remarks made by individual councillors before the 13 June 2023 meeting.
4.That each of the relevant motions involving the applicants were considered in confidence.
5.The number of conflicts declared by the councillors at the meeting on 13 June 2023, coupled with the fact that unlike on previous occasions, despite the conflicts, they remained in the room and voted.
It is well settled that the test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the decision maker might not bring an impartial mind to the resolution of the issues to be decided.
As the High Court explained in Ebner v Official Trustee in Bankruptcy:[34]
… That principle gives effect to the requirement that justice should both be done and seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
[34] (2000) 205 CLR 337 at [6]-[7].
The application of the criterion was identified to involve a three step process that has been reiterated in the most recent High Court exposition of the principles applying to a consideration of the question of apprehended bias in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[35] It requires:
… (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair minded lay observer.
[35] (2023) 279 CLR 148 at [38].
In their joint judgment, Kiefel CJ and Gageler J emphasised the importance of the analysis being undertaken from the perspective of a lay person. They explained:[36]
In undertaking that assessment, “it is the court’s view of the public’s view, not the court’s own view which is determinative”. The hypothetical fair-minded lay observer is a deliberate and necessary construct which tethers the court’s analysis to the ultimate purpose of maintaining public confidence in the impartiality of the judicial system. The construct provides the “standard by which the courts address what may appear to the public served by the courts to be a departure from standards of impartiality and independence which are essential to the maintenance of public confidence in the judicial system”.
(Footnotes omitted)
[36] (2023) 97 ALJR 419 at [45]-[49].

It is important to note, in the context of the issues arising on this application, that prejudgment or a closed mind is not the absence of a blank mind or a neutral mind. The concept of a decision maker approaching their task with predisposition to a certain position was discussed by Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia Legeng (‘Jia Legeng’):[37]
… Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias.
… The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion. …
(Footnotes omitted)
[37] (2001) 205 CLR 507 at [71]-[72] (‘Jia Legeng’).
Although the test for apprehended bias was formulated in the context of judicial decision-making, it remains applicable to administrative decisions.[38] In an administrative context or quasi-judicial tribunal, however the test for apprehended bias is less exacting than when applied to courts.[39]
[38] Isbester v Knox City Council (2015) 255 CLR 135; Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32].
[39] McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504 (‘McGovern’).
In Jia Legeng,[40] Hayne J discussed the rationale behind this difference in approach:
Courts in this country make decisions by procedures that are both formal and adversarial. They do so by the application of rules for decision-making which, although not always defined with absolute certainty, are generally discernible before the contest is joined and are set by legislative or judicial processes which are external to the judge. The process of adjudication is generally conducted in open court. The judge must give reasons for the decision that is reached.
Importantly, the rules about judicial prejudgment recognise that, subject to questions of judicial notice, judges, unlike administrators, must act only on the evidence adduced by the parties and must not act upon information acquired otherwise. No less importantly, the rules about judicial prejudgment proceed from the fundamental requirement that the judge is neutral. That requirement for neutrality is buttressed by constitutional and statutory safeguards. Those safeguards include not only the provisions for security of terms of office and remuneration but also extend to statutory provisions prohibiting interference with the course of justice. A judge can have no stake of any kind in the outcome of the dispute. The judge must not “[descend] into the arena and … have his vision clouded by the dust of the conflict”. The central task and, it may be said, the only loyalty, of the judge is to do justice according to law.
Decisions outside the courts are not attended by these features. Reference need only be made to a body like the Refugee Review Tribunal established under Pt 7, Div 9 of the Migration Act 1958 (Cth) to show that this is so. The procedures for decision-making by that body are much less formal than those of a court. There is no provision for any contradictor and the procedures are, therefore, not adversarial. The decision-maker has little security of tenure and, at least to that extent, may be thought to have some real stake in the outcome. The decision-maker, in a body like the Refugee Review Tribunal, will bring to the task of deciding an individual’s application a great deal of information and ideas which have been accumulated or formed in the course of deciding other applications. A body like the Refugee Review Tribunal, unlike a court, is expected to build up “expertise” in matters such as country information. Often information of that kind is critical in deciding the fate of an individual’s application, but it is not suggested that to take it into account amounts to a want of procedural fairness by reason of prejudgment.
The analogy with curial processes becomes even less apposite as the nature of the decision-making process, and the identity of the decision-maker, diverges further from the judicial paradigm. It is trite to say that the content of the rules of procedural fairness must be “appropriate and adapted to the circumstances of the particular case”. What is appropriate when decision of a disputed question is committed to a tribunal whose statutorily defined processes have some or all of the features of a court will differ from what is appropriate when the decision is committed to an investigating body. Ministerial decision-making is different again.
[40] Jia Legeng at [178]-[181].
Consideration of the statutory framework is central, as is the identification of the task of the decision-maker. In Jia Legeng, Hayne J illustrated the point with a comparison of the role of a judge with other tribunals. His Honour said:[41]
In the case of a court, it will usually be self-evident that the issue, if an issue of fact, is one which ought to be considered afresh for the purposes of the particular case by reference only to the evidence advanced in that case. Other decision-makers, however, may be under no constraint about taking account of some opinion formed or fact discovered in the course of some other decision. Indeed, as I have already pointed out, the notion of an “expert” tribunal assumes that this will be done. Conferring power on a Minister may well indicate that a particularly wide range of factors and sources of information may be taken into account, given the types of influence to which Ministers are legitimately subject. It is critical, then, to understand that assessing how rules about bias, or apprehension of bias, are engaged depends upon identification of the task which is committed to the decision-maker. The application of the rules requires consideration of how the decision-maker may properly go about his or her task and what kind or degree of neutrality (if any) is to be expected of the decision-maker.
[41] Ibid at [187].
Justice Hayne went on to explain how the nature of the decision to be made impacts on a consideration of the scope of a complaint of apprehended bias:[42]
Once it is recognised that there are elements of the decision-making process about which a decision-maker may legitimately form and hold views before coming to consider the exercise of a power in a particular case, it is evident that the area within which questions of actual or apprehended bias by prejudgment may arise is reduced accordingly. …
[42] Ibid at [192].
In the instant circumstances, ch 5, pt 4, div 1, sub-div 4 of the Act modifies the complexion of apprehended bias by, necessarily, removing the possibility of drawing adverse inferences when councillors declare general conflicts and then, in accordance with s 74B participate in the meeting.
In McGovern v Ku-ring-gai Council (‘McGovern’),[43] the New South Wales Court of Appeal was required to consider the question of apprehended bias in the context of a decision made by a council. In that case, a council approved an application for consent to further develop a residential property, over the objection of the applicants’ neighbours. Prior to voting on the matter, two councillors had come to the view that the application should be approved and they had expressed that view in strong terms on more than one occasion.
[43] (2008) 72 NSWLR 504.
The issue in McGovern was “how the [apprehended bias] test operates in relation to a local government authority, constituted by elected councillors, which has a diversity of functions including the broadly political (see Local Government Act 1993, s 8) and those of an administrative decision-maker granting authority for specific developments, in accordance with statutory criteria, as in the present case”.[44]
[44] McGovern at [75].
It was considered by Spigelman CJ to be of particular significance that the relevant statutory power was vested in a democratically elected council, exercising a discretionary power expressed in broad terms to which multiple considerations applied and in respect of which there might be a range of permissible opinions. At a practical level, it is also to be expected that a person in the position of a councillor will form opinions and may express them before voting takes place.
As Basten JA observed, considering Jia Legeng:[45]
There can be no doubt that the position of councillors sitting on a local government authority are far removed in the exercise of their functions from a judicial paradigm. In those circumstances, a significant degree of care must be taken in applying a test, the language of which is deemed appropriate both in respect of courts and in respect of elected administrative decision-makers.
[45] Ibid at [77].
Basten JA suggested that in considering the issue of apprehended bias in the context of a decision by members of a council:[46]
… The real question is what, with the appropriate level of appreciation of the institution, the fair-minded observer would expect of a councillor dealing with a development application. The institutional setting being quite different from that of a court, the fair-minded observer will expect little more than an absence of personal interest in the decision and a willingness to give genuine and appropriate consideration to the application, the matters required by law to be taken into account and any recommendation of council officers.
[46] Ibid at [80].
As was observed in Jia Legeng,[47] it would be unrealistic to expect a political decision‑maker to modify his or her behaviour in order to conform to higher standards than required by his or her office.
[47] Jia Legeng at [102].
Political decision-makers are elected to represent the community and in the case of a council member, their constituency. It is those interests that are to be put first. It necessarily follows that they are expected to hold and state views firmly and, on occasion, emphatically. Those views may be adverse to a person seeking a favourable outcome. This alone cannot give rise to an apprehended bias.
Before considering each of the complaints made by the applicants that are said to form the basis of apprehended bias in this case, I make some observations about the attributes of a hypothetical fair‑minded observer.
The hypothetical fair‑minded observer assessing possible bias is to be taken to be aware of the nature of the decision and the context in which it was made,[48] as well as to have knowledge of the circumstances leading up to the decision.[49] The observer is assumed to have knowledge of the relevant legal framework, the identity and nature of the decision‑maker, the nature of the decision and issues in question, the relevant facts and circumstances leading to the decision and the impugned conduct.[50]
[48] Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 at [68].
[49] Stollery v Greyhound Racing Control Board (1972) 128 CLR 509 at 519.
[50] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CQZ15 (2021) 284 FCR 455 at [91].
The observer is necessarily reasonable[51] and neither complacent or unduly sensitive or suspicious.[52]
[51] Johnsonv Johnson (2000) 201 CLR 488 at [12].
[52] Ibid at [53].
A finding of apprehended bias is not to be reached lightly; it must be firmly established.[53] An allegation of apprehended bias against an administrative officer must be distinctly made and clearly proved.[54] A vague sense of unease or disquiet is insufficient.[55]
Statements made by councillors at the 22 May 2023 meeting that demonstrated a “slant or leaning” against the applicants
[53] The Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128.
[54] Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 218 at [40].
[55] Ibid at [40].
The comments relied on in support of this contention are the highlighted portions of the transcript from the meeting of 22 May 2023, set out at [67].
It is important that these comments are not considered in a vacuum, but in the context of the events that had led up to the meeting, what took place at the meeting and what occurred afterwards prior to the decision to remove the applicants. The fair‑minded lay observer would be in possession of all of this history.
I have already set out in some detail the tumultuous events that led up to the 22 May 2023 meeting. I do not propose to repeat them, other than to make the observation that regardless of who was in the right and who was in the wrong, the conflict between the applicants and the other Council members had dominated Council business and that state of affairs was no doubt contrary to the best interests of the community. Council meetings are the forum at which decisions are made by the Council. To be a member of the Council involves attending and participating at those meetings. The importance of doing so is reflected in s 54(d) of the Act. As a matter of fact, the applicants had failed to attend three consecutive meetings, having been disruptive at earlier meetings.
In such circumstances it is unsurprising that a degree of frustration was developing amongst some members of the Council. It would have been unnatural for that not to have occurred. Such a common and expected human reaction could not be a basis for drawing an inference that a month later, when the motion was moved to remove the applicants, that members of the Council had a closed mind.
Having said that, when the impugned comments are considered in context, they were in fact a temperate response to how events were unfolding.
“…Councillor [CB’s] ward and Councillor [DH’s] ward, which my understanding is not being very well represented…”
The first observation to be made about this comment is that it was made by Cr AG who was not present at the meeting on 13 June 2023.
The statement is factually correct, in that by failing to attend three meetings, the applicants’ wards were not being well represented. Cr AG made it plain that he was expressing a personal view to the effect that the applicants were neglecting an important part of their roles in failing to attend and represent their constituency.
Critically, however, the relevant passage ends with a request by Cr AG that the Mayor and the CEO write to the applicants to obtain their reasons for not attending. He concludes by saying that when the response is received, the Council can consider it and move forward. This is hardly suggestive of a closed mind.
“… it doesn’t seem like the two wards are actually being represented 100%. … other councillors are happy to pick up the slack…”
Whilst the councillor who made this comment, Cr KG was at the meeting on 13 June 2023, the observations that I have made about the previous impugned comment (1), are equally applicable to what was said by Cr KG.
Again, it should be noted that the motion that followed this debate was to write to the applicants to seek their explanation.
“… particularly very recently … they have had to pick up the slack…”
The broader context in which this comment was made is important. Prior to the passage relied upon by the applicants, Cr PJ emphasised the importance of giving the applicants an opportunity to put their version of events before the Council. The choice of words used by Cr PJ reflects an absence of judgement of the applicants. He spoke in terms of them being “unable” to participate. Cr PJ was in no way critical of the applicants and chose to focus instead on commending the extra efforts that other members of the Council had made in their absence.
“We are all very busy people. We all have lives and we all came onto this together for I thought we did for the better. As everyone around the table knows and maybe members of the gallery might not know but I’m a shift worker and I work at night. I work until 11:30 sometimes, quite well beyond depending the overtime I would get. And I know I’ve been an apology a few times to a couple of committee meetings. I’ve never missed a general council meeting. It’s a commitment that I made when I when I put myself up for nomination for election that I will make myself available and I think it’s this particular motion, I think, and we all talk about it every week. We know we notice the empty chairs. … So I think, I think that report will hopefully allow them to reflect on their attendance, or should I say lack thereof and hopefully prompt my colleagues to come and join. Because l’d love to have a good working relationship with everyone, like [unclear] everyone is in this room. Unfortunately, I haven’t been afford the opportunity to have any sort of relationship with these others, with Councillor Burner and Councillor Bawden, just because they’ve not been here and they’ve not made themselves available to that. So I’d be interested to see what this report brings back”
It was said by the applicants that this statement reflects a degree of frustration on the part of Cr AG about the unfair distribution of work.
I again make the observation that Cr AG was not at the meeting on 13 June 2023 and did not participate in the vote to remove the applicants.
Whilst I accept that this passage may reflect a degree of frustration, it is frustration that would be readily understandable to a reasonable observer, armed with the knowledge of the events that had led up to this point.
The frustration is, however, tempered by an apparent decision to move forward in the hope of the applicants taking up a meaningful role in the Council. Cr AG spoke of the applicants being afforded an opportunity to reflect on their attendance and of being desirous of having a good working relationship with them.
Individually, or in combination, there is nothing that was said during the meeting that took place on 22 May 2023 that may lead a fair-minded lay observer to find that the members of the Council who moved the motion on 13 June 2023 may not have done so with an impartial mind.
That is even more so when the time frame and context in which these comments were made, is considered vis a vis the date of the motion to remove the applicants. The comments were made almost a month earlier and resulted in a request for the applicants to explain their absences. Subsequent to this, there were further meetings and written communications. It would be to draw a very long bow to suggest that these passing remarks created an impression of bias when considering the events of 13 June 2023.
The tone and manner in which the councillors conducted themselves before and during the meeting on 13 June 2023
As I have said, I have listened to and viewed the recording of the meeting that took place on 13 June 2023. I have set out my observations at [89].
I do not accept the applicants’ counsel’s characterisation of the meeting as involving a “concerning…sense of jocularity”.[56]
[56] T36.
To the contrary, whilst at times, prior to the formal meeting, there was a “lightness” to some of the conversation, involving a degree of social banter, that was not universal for all of those present. However, when the formal proceedings commenced, the mood changed and to my observation became appropriately professional and business like.
It would be an extreme case in which it could be inferred from laughter that Council members may not have brought an impartial mind to bear, given the myriad of reasons for why someone may laugh.
The circumstances of this meeting fall a long way short of that, and in my view there is no factual basis for this submission.

Remarks made by individual councillors before 13 June 2023 meeting
It is the applicants’ contention that there were some exchanges that took place between members of the Council during informal conversations prior to the commencement of the formal proceedings on 13 June 2023 that suggest that some of those present had a closed mind to the matters on the agenda. It was submitted that these comments demonstrate a failure by the relevant councillors to fairly consider the materials provided to them, in such a way that it would create the apprehension of bias in the fair-minded lay observer.
There are a number of problems with this submission, however before coming to these issues, I note that as a starting point it is necessary for the applicants to establish that it was members of the Council who made the relevant comments as opposed to the various members of the Council staff who were present. In my view they fail at this first hurdle.
I have been provided with a transcript that is said to reflect some of the conversation that can be heard on the audio recording commencing at about 06.18 into the meeting.
I set that transcript out in full:
(06:18)
MALE 1:     Mate, that report took me forever to write-
MALE 2:     Yeah, I know-
MALE 1:Ahhhm, I started on, like, Friday afternoon, so that’s like pretty much a whole day
(unclear)
MALE 1:It’s a good report isn’t it?
(unclear)
(06:45)
MALE 3:Yeah, and within, like, 48 hours (unclear) through this one [YES] that I’m not 100% certain of-
MALE 4:Gotta read the report
MALE 3:-and I’ll get back to you (unclear), thank you very much for last weekend.
MALE 5:Unless you don’t want to be bothered reading it, and just see what the two options are.
(unclear)
MALE 5:     Skip to the end
(unclear)
FEMALE 1:Just look at the option and-
(unclear)
MALE 4:Read the preamble or read the choices
FEMALE 2:Oh God
(07:17)
Counsel for the respondent does not accept that the transcript fairly or entirely reflects what can be heard on the recording; it is at least incomplete.
I have listened to the recording a number of times, using the transcript as an aide memoire. I have noted that the words recorded on the transcript can be heard on the recording, although there are clearly other undecipherable words being spoken in the background. Whilst the transcript attributes certain comments to Male 1, 2, 3, 4 and 5, and Female 1 and 2, I am not confident that is an accurate reflection as to who said what.
I have previously set out my observations of what can be seen once the video camera was turned on. Based on the uninterrupted nature of the conversation and what can be seen on the video, in my view the only logical inference is that the comments recorded in the transcript were made by Council staff and not councillors. It is the council staff who are seen to be animated and talking amongst themselves when the video commences. That inference is further supported by the fact that it would have been a member of staff and not a councillor who would have been responsible for drafting the report. It would be anticipated that members of the Council staff would have copies of the agenda and relevant documents available to them at the meeting.
Based on the evidence before me, the applicants have not established that any of the relevant remarks relied upon were even heard by members of the Council and in all likelihood they were made by members of the staff seated in a separate area.
In all of the circumstances, there is no need to consider any of the competing submissions made about these comments any further.
Each of the relevant motions involving the applicants were considered in confidence
The public were in attendance during the premeeting on 13 June 2023. The first item on the agenda under the heading “Orders to exclude the public” were recommendations that the Council consider proceedings in confidence for the motions in relation to the applicants. It reads as follows:[57]
[57] Kelly Affidavit at 21.
C1Absenteeism Cr Severina Burner
Recommendation
Pursuant to section 83(5) of the Local Government Act 1999 the Chief Executive Officer has indicated that, if Council so determines, this matter may be considered in confidence under Part 3 of the Local Government Act 1999 on grounds that:
1.Pursuant to Section 90(2) and (3)(a) of the Local Government Act 1999, the principle that the meeting should be conducted in a place open to the public has been outweighed in relation to this matter because:
-      it relates to information the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (living or dead).
2.In weighing up the factors related to disclosure,
-      disclosure of this matter to the public would demonstrate accountability and transparency of the Council’s operations
-      Personal Affairs of the person would be implicated
On that basis the public’s interest is best served by not disclosing the Absenteeism Cr Severina Burner item and discussion at this point in time.
3.Pursuant to Section 90(2) of the Local Government Act 1999 it is recommended the Council orders that all members of the public, except staff of the City of Salisbury on duty in attendance, be excluded from attendance at the meeting for this Agenda Item.
At the outset of the meeting, after the Welcome to Country, the prayer and apologies, the Deputy Mayor raised that there were only two agenda items and that there were proposed orders to exclude the public whilst those items were being debated. The motions to exclude the public were moved and the remainder of the meeting was held in confidence.
The applicants’ contention about the exclusion of the public is twofold. The first was founded on a misunderstanding of what in fact occurred. It was the applicants’ submission that the disinhibited jocular behaviour was inconsistent with how the Council members would have behaved, had the proceedings taken place in public and that this in some way founds a submission of apprehended bias. This submission is factually flawed at a number of levels. As I have found, there was nothing untoward about the level and timing of the jocularity at the meeting. Also, it was Council staff who were engaged in these conversations. Finally, the public were in fact in attendance for that portion of proceedings.
The second aspect to this submission appears to be a suggestion that there was something untoward, or something to be kept secret at the meeting that founded a desire for these events to take place in private. Again, the submission is without factual foundation. There was a proper basis to conduct this meeting in confidence, given the particular sensitivities of the situation. Further, a review of the transcript of the proceedings after the public were requested to leave, demonstrates nothing untoward or sinister took place, such that the Council would be concerned about it becoming public knowledge.
There is no merit to the complaint about the proceedings taking place in confidence.
The number of conflicts declared by the councillors at the meeting on 13 June 2023, coupled with the fact that unlike on previous occasions, despite the conflict, they remained in the room
At the outset of the first motion (to remove Ms Burner) a general conflict of interest was declared by Cr KG, Cr BB, Cr LB and Cr SM. Each councillor explained that the conflict arose from being involved in the complaints process and that, whilst they would remain in the meeting and vote in the best interest of the community, they would not participate in the debate.
Similarly, when it came to the motion for the removal of Ms Bawden, Cr PJ, Cr LB, Cr BB and Cr KG declared a general conflict of interest as a result of having been involved in the previous complaints process. They adopted the same approach as had been undertaken in relation to Ms Burner, which was to remain in the room and vote in the best interest of the community, however they indicated that they would refrain from participating in the debate.
It was contended by the applicants that for councillors who had openly declared a general conflict of interest, to remain in the room and participate in the vote, may lead a fair-minded lay person to reasonably apprehend that the Council, particularly those who had declared a conflict, might make a decision based on considerations, other than on the legal and factual merits.
That was said to be particularly so when contrasted against the approach that had been taken on votes at previous meetings involving allegations about the applicants’ conduct. On those occasions, when conflicts were declared, the relevant councillors had absented themselves from the room for the debate and vote.
It was submitted that the situation in relation to Cr KG was all the more extreme because she went on to move the motion for the removal of the applicants.
Whilst there is a superficial appeal to this argument, upon closer scrutiny of s 74 of the Act and, what had occurred at previous meetings and on this occasion, the argument falls away.
At the 13 June 2023 meeting the matter under consideration was the exercise of the power to remove the applicants using the power under s 54(1)(d) of the Act. That was distinct from the focus of motions that took place in relation to the applicants at earlier meetings. On previous occasions the subject of the debate had been complaints made by members of the public and other councillors about contraventions of the Local Government Code of Conduct and what action should be taken in response to those complaints. In those circumstances, understandably, it was untenable for a councillor who had been involved in making a complaint to stand in judgement of the merits or outcome of the complaint. That councillor would properly be regarded as standing in the role of accuser. Clearly, it would be inappropriate for the councillor who had been involved in making the complaint to deliberate on whether the complaint should be upheld, or what the penalty for the conduct should be. The course that was adopted, with the relevant councillors declaring the conflict and absenting themselves from the room, was an appropriate outcome in those circumstances.
The purpose behind the 13 June 2023 meeting was entirely different. It was not part of the complaint process or an event that followed from the complaint process. It was a meeting convened to determine the consequences of the applicants’ failure to attend at three consecutive ordinary Council meetings. This was a situation in which no particular councillor was the accuser. It was no doubt for that reason that each of the councillors who declared a conflict adopted a different approach; to choose to not leave the room and to remain to participate in the vote. Arguably, the decision to declare a conflict was a cautious one, given the nature of the matter under debate.
During submissions counsel for the respondent suggested that it was likely that this conservative approach was adopted because the letter written on behalf of the applicants, providing their explanation for their failure to attend previous meetings, contained allegations of bias. It was submitted that such an interpretation of the reason for which the councillors came to declare a general conflict of interest was supported by the fact that at a previous meeting when the s 54(1)(d) removal had initially been raised, no one had declared a conflict.
Regardless of the explanation, I accept the submission that the declaration of conflicts on 13 June 2023 was a conservative and cautious approach.
In addition, the conduct of the councillors needs to be considered through the prism of ss 74 and 75B of the Act. Section 74(1) defines a general conflict of interest consistently with the common law. That is:
…A member of a council has a general conflict of interest in a matter to be discussed at a meeting of the council if an impartial, fair-minded person might consider that the member’s private interests might result in the member acting in a manner that is contrary to their public duty.
Section 75B requires a councillor to deal with a general conflict by dealing with the interest in a transparent and accountable way. In order to do so, the counsellor must inform the meeting of the interest, whether or not they propose to participate in the meeting, if they choose to participate, the reason for doing so and then how they intend to deal with the conflict of interest . Each of the relevant councillors complied with these requirements.
Section 75B(4) makes it plain that the Act envisages that there are alternative means by which to deal with a general conflict other than non-participation, that will satisfy the requirement that the conflict be dealt with in “a transparent and accountable way”.
The combined effect of ss 74 and 75B is to make provision for Council members who have an interest, that satisfies the definition of a general interest, to make a declaration and leave it to those members to decide how to best deal with that interest. It does not necessarily require non-participation.
It plainly follows that making a choice to continue to participate cannot of itself invalidate a decision. What s 75B(4) explicitly authorises to occur cannot, of itself, then give rise to apprehended bias.
During submissions, counsel for the applicants focused particular attention on the conduct of Cr KG, so it is necessary to separately consider the position that she adopted at the 13 June 2023 meeting.
At the outset of the meeting Cr KG declared a general conflict of interest in relation to Ms Burner in the following terms:[58]
Thank you Chair. Firstly I would like to declare a general conflict of interest in regards to this matter some guidance in regard to information forwarded by Cr Burner and I will deal with that by partaking, I won’t be raising issues with the general conflict that has been raised but I will remain in the room and vote in accordance to my community. …
(Emphasis added)
[58] D’Agostino Affidavit at 188.
Subsequently to this, Cr KG moved the motion that option 2 (to remove Ms Burner) be adopted. That motion was seconded by Cr LB. The Deputy Mayor then asked Cr KG whether she wished to speak to the motion. She took up that opportunity and said:[59]
Yes I do wish to state that given all of the information that we have received I do note in there that there’s some discrepancy between the attended meetings, I would like it noted that the 27^th of March was a, was not attended by Cr Burner. In fact I believe she is referring to the previous week where she attended via Teams to a committee meeting not a full Council meeting. Just in regards to this, we have given this fair and considerate consideration on this matter and I think it’s about time that we being able to move forward.
[59] D’Agostino Affidavit at 189.
The motion to remove Ms Burner was then moved unanimously.
The meeting moved on to consider the second agenda item. Cr KG again declared a general conflict. This time she said:[60]
Once again I will be declaring a general conflict of interest based on the fact that I may have been a submission of the complaint against Cr Bawden but I will remain in the meeting and only discuss the absenteeism of Council in regards to this item and I will vote in the best guidance of my constituents and I am happy to move.
(Emphasis added)
[60] D’Agostino Affidavit at 190.
The motion was seconded by anther councillor. Again, the Deputy Mayor asked Cr KG if she wished to speak to the motion. She responded:[61]
I think it all speaks for itself noting that the medical certificates that were provided, it is quite well known that Council members are not actually considered employees therefore the certificates are not required. But it all speaks for itself given all the evidence there.
[61] D’Agostino Affidavit at 190.
The motion to remove Ms Bawden was then unanimously moved.
Counsel for the applicants was highly critical of the role that Cr KG played during the meeting, given that she has previously made a complaint against each of the applicants. It was submitted:[62]
… in the case of [Cr KG] (who was conflicted, and declared as much) she not only moved the motion in each case, but despite saying she would not participate in the deliberation (with the minutes showing as much), she was the only Councillor to say anything in favour of the motion which was ultimately passed unanimously in each case. No Councillor present at the meeting spoke against the motion.
(Emphasis in the original)
[62] Applicants’ Written Submissions at [12.3].
It was the applicants’ submission that Cr KG’s conduct at the meeting was such as to create an apprehension of bias.
I do not accept that submission. Again, it is important to look closely at what was said and done by Cr KG. She herself drew the distinction between the complaints that had been made about the applicants and the decision that the Council was required to make as a result of the applicants’ failure to attend three consecutive ordinary Council meetings.
Cr KG did what she had said that she would do, that is, not discuss the complaints made against the applicants and only discuss their absences at the meetings. Whilst Cr KG made a recommendation in support of option 2, I accept the respondent’s submission that this was of no moment. There was option 1 and there was option 2, which were effectively two sides of one coin. If option 2 was put forward and refused, it would revert to option 1.
The moving of a motion in the circumstances was no more than a catalyst for moving the meeting forward. It was a mechanism for permitting consideration of the motions, which were then declared and carried unanimously.
Other than that, the entirety of the role of Cr KG was to correct a factual error about when Ms Burner had not been in attendance and to make the apposite observation that “… we have given this fair and considerate consideration on this matter and I think it’s about time that we being able to move forward”. There was nothing about Cr KG’s conduct that created or contributed to a perception of bias at the 13 June 2023 meeting.
In my view, taking into account each of the matters raised by the applicants individually and in combination, the test for apprehended bias has not been satisfied.

Mandatory relevant considerations and relevant material

The “relevant considerations” ground of judicial review is only available when a decision maker is bound to take the omitted factor into account, in the sense that the legislature intended that a decision made without taking the matter into account would be invalid.[63]
[63] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-43.
The high point of the applicants’ argument on this ground is based on the New South Wales Court of Appeal decision of Ryan v Heiler.[64] In that case the plaintiff was an alderman of a local council who had been removed from the council on the basis that he had been absent without the leave of the council from three consecutive ordinary meetings. On the third occasion the plaintiff had sent an apology and two other aldermen then moved that the apology be accepted and a leave of absence be granted to the plaintiff. At the first instance hearing and on appeal, issues were raised about the meaning of the word “absent” and the difference between a “leave of absence” and an “apology”.
[64] [1990] NSWCA 160 (‘Ryan’).
The applicants placed reliance on an observation made by Samuels JA on the appeal about the potential relatedness between an apology and leave of absence. His Honour said:[65]
I would have thought that an apology was the necessary prerequisite to having the question of leave of absence considered. Without an apology the absence of the member might very well pass unnoticed or at least without anyone coming forward as an auxiliary to propose that leave of absence be granted.
[65] Ibid at 2.

It was submitted that the apologies made by the applicants, and the circumstances in which they were offered, ought to have enlivened the Council’s mind as to whether or not leave was being sought. There were three matters that the applicants argued should have alerted the Council to consider whether leave of absence should have been granted. These were the sick certificates provided by Ms Burner and Ms Bawden, the email sent by Ms Bawden to the CEO on behalf of both applicants, with apologies for the next three months, and also the representation made on 8 March 2023 that “we are both seeking instruction on formally applying for stress leave”.
It was submitted that the combination of these matters meant “that the Council was required to turn its attention, as a mandatory relevant consideration, in respect of each applicant and on each month for which the request for leave related, to whether leave should be granted or not”.[66]
[66] Applicants’ Written Submissions at [32].
I do not accept that submission. An apology is a very different concept to leave of absence. An apology is to ask for forgiveness for failing to attend when required; a leave of absence is to obtain dispensation from the requirement to attend. As Young J, the judge at first instance in Ryan v Heiler, noted:[67]
There is thus an essential philosophic distinction between leave of absence, which is a dispensation from a requirement which might otherwise exist on the one hand, and an apology, which is an indication that the obligation that exists has not been met and a request for absolution. In particular the proffering of an apology is only part of the process. It is merely to indicate one’s repentence, but if I can keep the analogy going, absolution is not obtained until the apology is accepted.
[67] (1990) 69 LGRA 307 at 31.
The passage cited at [194] from the judgment of Samuels JA goes no higher than to suggest that an apology may trigger an application for leave – which falls a long way short from mandating that the Council must consider whether to grant leave of absence whenever there is an apology. If that were so, it would mean that on every occasion that a councillor provided an apology for failing to attend a meeting, the Council would be required to consider whether to grant a leave of absence.
Even putting that to one side, there are problems with the factual basis upon which the applicants rely.
Whilst Mrs Burner submitted a sick certificate, it did not cover any of the dates of the meetings that she failed to attend. Ms Bawden’s sick certificates covered two of the meetings, however, provided no more by way of explanation other than that she was “unfit for her normal work”. That explanation was inconsistent with those that she provided to the CEO for failing to attend. A day after she provided the first sick certificate, Ms Bawden wrote to the CEO and said, “Apologies for being a bit late in my reply. I have had to work extra shifts this week…”.[68] In April, Ms Bawden provided the second sick certificate, however, sent an email saying, “Just found out my puppy has broken his back leg and needs surgery this afternoon urgently…I won’t be able to attend tonight because of this unexpected emergency…”.
[68] Kelly Affidavit at 787.
To suggest that, in the face of such highly contradictory explanations, the Council was required to consider whether the applicants should be granted leave of absence is novel and without any legal foundation.
There is no merit to this ground.

Improper exercise of power and legal unreasonableness

Generally speaking, the “test for unreasonableness is necessarily stringent” and “the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion”.[69] The threshold is “usually high”.[70] There is “an area within which the decision-maker has a genuinely free discretion which resides within the bounds of legal reasonableness”[71] and the Court should not interfere “just because the court would have exercised the discretion in a different way”.[72]
[69] Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [11].
[70] Ibid at [11], [52], [89], [135].
[71] Ibid at [97].
[72] Ibid at [86].
The standard of legal reasonableness does not involve substituting a court’s view as to how a discretion should be exercised for that of the decision‑maker. Legal reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision‑making process. It is also concerned with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law”.[73] These principles have added force when the discretion conferred by s 54(1)(d) of the Act is so broad and in unqualified terms.
[73] Ibid at [82].
In circumstances such as these, in which there were no reasons provided for the decision and there is no duty to give reasons, the Court’s only option is to look at the outcome to see if it contains an intelligible justification.
In support of this ground, the applicants rely on the “jocularity” of the meeting and the comments that they allege were made by councillors in the pre‑meeting. I have already set out my findings on this topic at [144]-[148]. I do not propose to repeat them.
There is no doubt that to make good this complaint, the applicants have to meet a very high bar. That is particularly so in circumstances in which there is essentially an unfettered public interest discretion reposed in the Council that has to be exercised for the purposes of the statute.
There was clearly an intelligible basis to arrive at this decision. The jurisdictional test had been satisfied. The background was that when the applicants had previously attended, they made strident remarks and would not meaningfully engage with other councillors. Those extreme remarks were posted on social media. The applicants were the subject of numerous complaints that were investigated with adverse findings made against them. There were Council resolutions under the Act which required apologies, however, none were forthcoming. The applicants’ response was to disengage and make broad, sweeping and non-specific allegations of bullying. On my review of the minutes of the Council meetings over the relevant period, the topic of the applicants’ conduct dominated the meetings. I would go so far as to say that their conduct had the potential to bring the Council into disrepute. Not only is there no basis to claim that the decision of the Council to remove the applicants was unreasonable, but rather it is difficult to see how any contrary decision could have been arrived at. Their explanation for their failure to attend at three consecutive council meetings was entirely unreasonable.

Wrong question and/or wrong issue and/or misunderstanding

A tribunal will fall into jurisdictional error if it identifies a wrong issue, asks itself the wrong question, ignores relevant material, relies on irrelevant material, or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion.
Central to the applicants’ argument on this ground are the letters that were sent by the CEO to the applicants dated 30 May 2023. The letters advised the applicants of what took place at the meeting on 29 May 2023 and then said:[74]
This letter is to advise you of these resolutions and specifically requesting your submission to the Council by Friday 2 June 2023, 12pm as to why the Council should not exercise its powers under section 54(1)(d) of the Local Government Act 1999 to remove you from office as a member of the Council.
(Emphasis added)
[74] Kelly Affidavit at 826.
It is the applicants’ contention that this passage demonstrates a misunderstanding of the relevant legal test in that “it approached it as though, once those jurisdictional facts of being absent for three consecutive months, … they were inclined to say ‘We’re ready to go, to pull the trigger’”.[75]
[75] T80-81.
It was the applicants’ submission that had the proper legal test been applied, the letter would have read, “There appears to be these jurisdictional facts in issue. We invite you to respond as to whether this power should be exercised” and depending on the response, take it further.[76]
[76] T81.
I do not accept the submission that the letter reflects a misunderstanding of the law on the part of the Council. Again, the letter cannot be considered in isolation but must be read in the context of the events that had preceded it.
The Council resolution that resulted in this letter is an appropriate starting point and a complete answer to the argument advanced by the applicants.
The minutes of the meeting note that, to date, no written explanations had been provided by the applicants for their non-attendance at earlier meetings:[77]
2.Determines that it intends to exercise its power under section 54(1)(d) of the Local Government Act 1999 to remove Cr Severina Burner and Cr Grace Bawden from office as a member of the Council, on the grounds that Cr Severina Burner and Cr Grace Bawden have been absent for three (3) consecutive ordinary Council meetings (namely 27 March 2023, 24 April 2023 and 22 May 2023) without the leave of the Council subject to the receipt and consideration of further submissions from Cr Severina Burner and Cr Grace Bawden.
3.Requests the Mayor and Acting Chief Executive Officer to write to Cr Severina Burner and Cr Grace Bawden seeking a submission to the Council by Friday 2 June 2023, 12pm as to why the Council should not exercise its powers under section 54(1)(d) of the Local Government Act 1999 to remove them from office as a member of the Council.
4.Calls a Special Council meeting to occur on Monday 5 June 2023 6.30pm to consider any submissions received as a result of part 3 above, and whether to exercise its powers under section 54(1)(d) of the Local Government Act 1999.
[77] Kelly Affidavit at 534.
The minutes reflect that the Council properly appreciated the test to be applied. The letter of 30 May 2023 was written to provide the applicants with procedural fairness, advising of the tentative view that had been reached by the Council.
There is no merit to this ground.

Failure to give proper, genuine, and realistic consideration to the merits

When a decision-maker contemplates the possible exercise of a statutory power adverse to an individual’s interests, that person is ordinarily entitled to procedural fairness. In this case, the Council was obliged to give the applicants an opportunity to address them on the issue of their possible removal. There can be no dispute that this opportunity was afforded to the applicants on more than one occasion.
When a person takes up that opportunity and addresses the decision‑maker, the decision-maker must give proper, genuine and realistic consideration to the submission that has been put. It is one aspect of procedural fairness.
The onus was on the applicants to persuade the Court that this did not occur. The only factual matter relied on by the applicants is that the debate that took place on 13 June 2023 was brief. It was the applicants’ contention that the failure of the Council to meaningfully discuss and debate the explanations provided by the applicants suggests that they failed to give their written submissions proper consideration.
In support of that argument, the applicants relied on a decision of Charlesworth J in Burgess v Minister for Immigration and Border Protection (‘Burgess’).[78] In that case, Charlesworth J considered whether the Minister’s consideration of materials comprising 89 pages could have been realistically achieved in no more than 15 minutes. In discussing the relevant principles to be applied, her Honour observed:[79]
The Full Court in Carrascalao said (at [47]) that the determination of whether or not a decision-maker has engaged in the requisite active intellectual process in a particular case:
… requires the Court to conduct an evaluative judgment, taking into account the available evidence and reasonable inferences, as to all the relevant facts and circumstances of each case. These include, but are not limited to, the nature and volume of the material placed before the Minister to assist his decision-making, as well as other matters which arise from the relevant statutory context …
[78] (2018) 259 FCR 197.
[79] Ibid at [82].
Charlesworth J found that, on the facts before her, the Minister could not have considered all of the relevant documents in the timeframe that was available to him. Her Honour concluded:[80]
In all of the circumstances, I consider it more probable than not that the Minister did not engage in the active intellectual process of reviewing the September Materials. Accordingly, I am satisfied that the Minister did not properly decide the issues bearing on the exercise of the power conferred by s 501(3) of the Act in relation to Mr Burgess’ visa on their substantial merits. The evidentiary value that would otherwise repose in the reasons for the decision is outweighed in the present case by probative evidence to the contrary, namely the limited time in which the statutory task was purportedly undertaken (being no more than 15 minutes), the range and nature of the issues to be determined and the nature and volume of the materials to be considered.
[80] Ibid at [93].
The circumstances of this case are very different to from those in Burgess. Here, the Council invited submissions from the applicants and extended the time to enable them to provide those submissions. The debate surrounding the decision to extend the time reveals that the councillors who spoke considered that the provision and consideration of submissions from the applicants was an important part of the process. They were keen to hear the applicants’ explanations.
The submissions provided by the applicants were before the Council as attachments to the report of the CEO. These documents and the agenda were circulated several days before the meeting. Given the interest previously shown by the councillors in hearing the applicants’ version of events, it would have been counterintuitive for them to have not read the submissions when they were received. In addition to that, it must be assumed, absent evidence to the contrary, that elected councillors will endeavour to undertake their duties honestly and diligently.
At the meeting, the Council resolved that it had considered the applicants’ submissions and explicitly noted them at Resolution 1.2. Section 91(11) of the Act provides that:
A document purporting to be minutes of proceedings at a meeting of a council, or a council committee, or to be a copy of or extract from such minutes, and to be signed by the chief executive officer, will be accepted as proof, in the absence of proof to the contrary, of the matters contained in the document.
In such circumstances, the absence of debate does not prove a failure to give genuine consideration.

Procedural fairness

The procedural unfairness that the applicants rely upon was the failure to be afforded an opportunity to respond to the comments that I have identified at [67]. I have considered those comments in their proper context, and, in summary, they all related to the circumstances in which the applicants were failing to attend at meetings. That was the very topic upon which they were invited to put a submission to before the Council.
In my view, the applicants were afforded procedural fairness.

Conclusion

There is no merit to any of the grounds raised by the applicants.
The applications are dismissed.

[2025] SASC 179

30 October 2025