Cornish v Secretary, Department of Planning, Industry and Environment

In the matter of Cornish v Secretary, Department of Planning, Industry and Environment, the dispute arose from disciplinary action taken against a local councillor by a local council, which was subsequently reviewed by the Civil and Administrative Tribunal (NCAT). The primary issue before the court was the validity of the statutory powers of the council to discipline the councillor for breaches of the Code of Conduct, and whether the referral to NCAT was proper. The court was tasked with determining whether the disciplinary action taken by the council was within its lawful authority and whether the NCAT had jurisdiction to review the matter.

The court examined the statutory framework governing the powers of local councils to discipline councillors, focusing on whether the power to censure was conferred by statute and whether additional powers contained in the Code were consistent with the legislative scheme. It was noted that the council required the councillor to acknowledge a breach, apologise, undertake not to repeat the conduct, and undertake training. The councillor's referral to the Chief Executive for failing to comply led to the matter being referred to NCAT. The court had to determine if the NCAT had jurisdiction to inquire into the underlying conduct and if the council's decision to discipline the councillor was based on an invalid provision of the Code.

The court found that the council's power to discipline the councillor was limited to censuring, as conferred by statute. The additional powers outlined in the Code, such as requiring the councillor to acknowledge the breach, apologise, and undertake training, were not consistent with the statutory scheme. Consequently, the court held that the council had acted beyond its lawful authority by imposing these additional requirements. Additionally, the court determined that the NCAT did not have jurisdiction to review the underlying conduct as the council's decision to discipline the councillor was based on an invalid provision of the Code. The court quashed the council's decision and remitted the matter back to the council for reconsideration within the scope of its statutory powers.