Lew v Blacher
[2024] VSCA 304
•11 December 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2023 0118 |
| COUNCILLOR ALEXANDER LEW | Applicant |
| v | |
| YEHUDI BLACHER IN HIS CAPACITY AS AN ARBITER APPOINTED PURSUANT TO SECTION 142 OF THE LOCAL GOVERNMENT ACT 2020 & ANOR (ACCORDING TO THE ATTACHED SCHEDULE) | Respondents |
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| JUDGES: | KENNEDY, KAYE and KENNY JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 11 November 2024 |
| DATE OF JUDGMENT: | 11 December 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 304 |
| JUDGMENT APPEALED FROM: | [2023] VSC 604 (Gray J) |
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ADMINISTRATIVE LAW – Judicial review – Internal arbitration of allegation of misconduct by Councillor – Finding of misconduct arising from content of social media post on Councillor’s private account relating to a matter for decision by Council – Whether trial judge erred in finding the expression ‘in performing the role of a Councillor’ applied to the Councillor’s conduct – Whether ‘decision making’ involved acquisition of information about ‘the diversity of interests and needs of the municipal community’ – Democratic nature of local government – Arbitrator the sole contradictor – No breach of Hardiman principle – Application for appeal to appeal granted – Appeal dismissed.
Constitution Act 1975 s 74A; Local Government Act 2020 ss 4, 8, 9, 28, 139, 142, 143, 144; Local Government (Governance and Integrity) Regulations 2020 r 12, Schedule 1.
R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, applied; R v A2 (2019) 269 CLR 507, applied.
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| Counsel | |||
| Applicant: | Ms K Foley SC, with Ms R Walsh | ||
| First Respondent: | Ms E A Bennett SC, with Mr A F Solomon-Bridge | ||
| Second Respondent: | No appearance | ||
Solicitors | |||
| Applicants: | Kingston Reid | ||
| First Respondent: | Victorian Government Solicitor’s Office | ||
| Second Respondent: | Barry Nilsson | ||
KENNEDY JA
KAYE JA
KENNY JA:
Introduction
The applicant, Alexander Lew, was a Councillor of Stonnington City Council (‘Stonnington Council’) from October 2020 to December 2022.
The first respondent, Yehudi Blacher, was appointed an arbiter under s 142 of the Local Government Act 2020 (‘LGA’) following an application by the second respondent, Polly Morgan, at that time also a Stonnington Council Councillor, for an internal arbitration pursuant to s 143 of the LGA. Her application concerned a Facebook post made by the applicant on 25 July 2021.
The applicant made his post following a Facebook post by Brendan Corr to the ‘Residents living in the Electorate of Higgins, Melbourne’ Facebook group, which Mr Corr described as a ‘local politically-focussed FB group’. Mr Corr’s Facebook post alleged that the applicant had a conflict that should have precluded him from any involvement in Stonnington Council’s review of the location of a proposed netball stadium.
The applicant used his personal Facebook account to respond in the comments under that Facebook post. The applicant’s comments included the following:
I don’t care that you now have this vendetta against me and that you will probably haunt me until your co-morbidly riddled body eventually packs up and is wheeled out of your [street name] mansion. The only reason you have not been thoroughly disowned by each and every councillor at Stonnington is you are a political asset to some. And when it comes to political assets, respect for women means nothing.
By her application under s 143 of the LGA, the second respondent sought ‘an internal arbitration process to make a finding of misconduct’ against the applicant, as contemplated by s 143(2)(b). Subject to s 144, the Principal Councillor Conduct Registrar was required to appoint an arbiter to Stonnington Council to hear the matter. The first respondent, Mr Blacher, was appointed as the arbiter from a panel list of eligible persons established under s 142 of the LGA.
The LGA defines ‘misconduct’ by a Councillor as ‘any breach by a Councillor of the prescribed standards of conduct included in the Councillor Code of Conduct’,[1] that a Council is required by the LGA to develop.[2] Section 139(3) provides that:
(3) A Councillor Code of Conduct—
(a)must include the standards of conduct[3] prescribed by the regulations expected to be observed by Councillors; and
(b)must include any provisions prescribed by the regulations for the purpose of this section; and
(c)must include provisions addressing any matters prescribed by the regulations for the purpose of this section; and
(d)may include any other matters which the Council considers appropriate, other than any other standards of conduct.
[1]LGA, s 3(1).
[2]LGA, s 139(1).
[3]The expression ‘standards of conduct’ is also defined in s 3(1) of the LGA to mean ‘the standards of conduct prescribed under section 139(3)(a) to be included in a Councillor Code of Conduct’.
Regulation 12 of the Local Government (Governance and Integrity) Regulations 2020 (‘Governance and Integrity Regulations’) provides that, for the purposes of s 139(3)(a) of the LGA, the prescribed standards of conduct are those set out in Schedule 1.
Clause 1 of Schedule 1 of the Governance and Integrity Regulations (‘Standards of Conduct’) provides as follows:
1 Treatment of others
A Councillor must, in performing the role of a Councillor, treat other Councillors, members of Council staff, the municipal community and members of the public with dignity, fairness, objectivity, courtesy and respect, including by ensuring that the Councillor –
(a)takes positive action to eliminate discrimination, sexual harassment and victimisation in accordance with the Equal Opportunity Act 2010; and
(b)supports the Council in fulfilling its obligation to achieve and promote gender equality; and
(c)does not engage in abusive, obscene or threatening behaviour in their dealings with members of the public, Council staff and Councillors; and
(d)in considering the diversity of interests and needs of the municipal community, treats all persons with respect and has due regard for their opinions, beliefs, rights and responsibilities.
(Emphasis added)
At the relevant time, under the heading ‘Treatment of others’, cl 5.1 (a)–(d) of the Stonnington Councillor Code of Conduct (‘Stonnington Code of Conduct’) reproduced, without amendment, the whole of cl 1 of Schedule 1 to the Governance and Integrity Regulations.[4]
[4]Clause 5.1 of the Stonnington Code of Conduct also had two additional subparagraphs, but neither party referred to them.
After hearing from the parties in writing, the arbiter made a finding of misconduct against the applicant on the basis that the relevant remarks amounted to ‘abusive behaviour which breached Clause 1(c)’ of the Standards of Conduct.[5] The arbiter imposed a sanction on the applicant, directing him to repeat his Councillor induction training and to refrain from using social media in relation to his role as Councillor until he had undertaken specific training in his use of social media as a Councillor, to the satisfaction of the Mayor. The applicant completed the training required by the arbiter’s decision, to the satisfaction of the Mayor.
[5]That is, Schedule 1 to the Governance and Integrity Regulations.
In reaching his decision, the arbiter rejected the applicant’s argument that s 28(1) of the LGA was an exhaustive statement of the role of a Councillor.[6] This aspect of the arbiter’s decision is at the heart of the applicant’s challenge in this Court. We set out the terms of s 28, headed ‘Role of a Councillor’, at paragraph 42 below.
[6]It is unnecessary to refer further to the arbiter’s reasons, since the arbiter’s rejection of this submission was the focus of the applicant’s challenge before the trial judge and on the hearing of this application.
In September 2022, the applicant applied to the Court under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 for a declaration that the arbiter’s decision was ultra vires or unlawful, and of no effect, as well as injunctive relief and relief in the nature of certiorari and mandamus. At the hearing, the first respondent appeared by counsel, and the second respondent entered a submitting appearance. The trial judge noted that the arbiter described his role at the hearing as ‘an attenuated Hardiman position’.[7] His Honour ‘took this to mean that he was assisting the Court and making submissions on the law, but not actively resisting Mr Lew’s claim’.[8]
[7]R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, 35–6; [1980] HCA 13 (‘Hardiman’). We return to the Hardiman principle below at paragraph 58.
[8]Lew v Blacher [2023] VSC 604, [6] (‘Lew v Blacher’).
On 13 October 2023, the trial judge dismissed the originating motion, as amended. The applicant now seeks leave to appeal from the orders made by his Honour that day.
Trial judge’s reasons
The trial judge held that the phrase ‘in performing the role of a Councillor’ in the Standards of Conduct and, therefore, in the Stonnington Code of Conduct ‘is capable of applying to behaviour of a Councillor in communicating with members of the public about matters for decision before the Council’.[9] His Honour concluded that the arbiter made no material errors of law in reaching his decision.
[9]Lew v Blacher, [8].
In his reasons for judgment, the judge paid close attention to the way in which the LGA addressed ‘Councillor conduct’ in Division 5 of Part 6 concerning ‘Council integrity’.[10] In this context, his Honour also provided a thoughtful account of the relevant legislative history of the LGA and the relevant subordinate legislation.[11] It is unnecessary to repeat this here. It is also unnecessary to repeat his Honour’s careful account of the circumstances attending the arbitration by Mr Blacher and Mr Blacher’s reasons for decision.[12]
[10]Lew v Blacher, [10]–[27].
[11]Lew v Blacher, [28]–[41].
[12]Lew v Blacher, [51]–[70].
While there were five identified grounds before the trial judge, his Honour’s reasons record that the ‘plaintiff pressed only one item of his pleaded claim for relief at the hearing, namely, a declaration that the arbiter’s decision is ultra vires or unlawful, and of no effect’.[13] Further, as his Honour observed, all five grounds depended on the correct statutory interpretation of the phrase ‘in performing the role of a Councillor, as it appears in the [Standards of Conduct]’.[14]
[13]Lew v Blacher, [78].
[14]Lew v Blacher, [79].
The trial judge accepted that s 28(1) of the LGA[15] was not exhaustive of all the permissible functions that can be regarded as part of the role of particular Councillors.[16] His Honour observed that ‘[t]he key word used in s 28(1), ‘role’, is capable of conveying a protean meaning’; and that ‘every’ in the phrase ‘it is the role of every Councillor … might suggest that the three activities … in s 28(1) are only the irreducible minimum role’ for every Councillor.[17] His Honour also accepted that s 53, as well as ss 129(d) and 147(2)(c) indicated that s 28(1) was ‘not exhaustive of all the permissible functions that can be regarded as part of the roles of particular Councillors’;[18] and further that s 28(3) was ‘a factor weighing against an exhaustive interpretation of s 28(1)’.[19]
[15]See paragraph 42 below.
[16] Lew v Blacher, [95].
[17] Lew v Blacher, [93].
[18] Lew v Blacher, [95].
[19] Lew v Blacher, [98].
Of more significance to his Honour’s analysis was the ‘role’ of the Council as ‘provided for in s 8(1)’. After referring to s 8(1), his Honour said:
... ss 28(2)(a) and (b) support the implication that community engagement for the purposes of decision making may, but not must, be part of a Councillor’s role envisaged by the Act. It would be surprising if community engagement were not a permitted function of Councillors, given the legislature’s clear statement of intention that Councils are to be engaged with their communities, along with the requirement that Councillors are to support the role of their Councils. It would take a clear statement of parliamentary intention to exclude community engagement from the permissible role of Councillors. Neither 28(1) nor any other provision of the Act makes any such statement. Part 3 div 1 leaves it to each Council to develop its own community engagement policy, providing scope for more details about Councillor involvement. There is also scope for a Council to address this topic in its Councillor Code of Conduct.[20]
[20]Lew v Blacher, [112]–[113].
In his Honour’s view, ss 28(1)(c) and 28(2)(e) of the LGA were also supportive of this conclusion. As to s 28(1)(c), his Honour observed that:
[I]t might be argued that, in order for an individual Councillor to contribute to the strategic direction in the manner intended by s 28(1)(c), the Councillor should understand and may permissibly engage with the municipal community, at least to the extent and in the manner each Council decides. Especially when read in light of ss 28(2)(a) and (b), in my view s 28(1)(c) is supportive of the broader interpretation of the role of a Councillor ... .[21]
[21]Lew v Blacher, [127].
As to s 28(2)(e), his Honour said that:
It is also necessary to consider s 28(2)(e), which requires a Councillor, in performing the role, to ‘act in accordance with the standards of conduct’. The Standards of conduct are described in s 3(1) as the standards of conduct prescribed under s 139(3)(a) to be included in a Councillor Code of Conduct. Section 139(2) describes the purpose of the Councillor Code of Conduct as being to include the standards of conduct expected to be observed by Councillors in the course of performing their duties and functions, including prohibiting discrimination, harassment, and vilification. These textual links in the Act suggest that any conduct of Councillors in the course of performing their duties and functions can be regarded as conduct in performing their role as a Councillor. As already mentioned, the Act envisages additional duties and functions being conferred on Councillors outside those set out in s 28(1). This also supports the broader interpretation …[22]
[22]Lew v Blacher, [128].
The trial judge concluded that s 28(1) of the LGA was not exhaustive of the permissible role of all Councillors and, in any event, could involve community engagement, including via social media.[23] His Honour added that ‘whether a particular Councillor engaged in conduct “in performing the role of a Councillor” for the purposes of applying the standards of conduct involves considering the scope of the functions of the Councillor in the context of the relevant Council, and the circumstances as a whole. Provided the arbiter does not make a material error in understanding this, it is a matter for the arbiter to determine whether that test is met on the facts of the relevant case’.[24]
[23]Lew v Blacher, [115], [120], [130].
[24]Lew v Blacher, [132].
His Honour concluded that none of the grounds advanced by the applicant were made out. In particular, the arbiter’s view that the applicant’s decision-making role as a Councillor encompassed ‘antecedent community engagement or consultation relating to decision making generally, or at least relating to issues for potential decision making by the Council’ was ‘substantially correct’.[25]
[25]Lew v Blacher, [139]–[140].
Application for leave to appeal
The applicant seeks leave to appeal from his Honour’s judgment. There were eight proposed grounds of appeal, although they raised essentially the same issue, that is, what is the proper construction of s 28(1) of the LGA and the phrase ‘in performing the role of a Councillor’ in cl 1 of the Standards of Conduct.[26]
[26]See Schedule 1 of the Governance and Integrity Regulations.
It is unnecessary to set out all eight grounds. It suffices to refer to Ground 2, which senior counsel for the applicant accepted stated the key point for present purposes. Ground 2 read as follows:
Ground 2: The phrase ‘in performing the role of a Councillor’ in s 28(2) necessarily refers to the role delineated by s 28(1) and did not extend, as his Honour erroneously construed, more generally to unspecified “behaviour of a councillor in communicating with members of the public about matters for decision before the Council.
By way of a notice of contention, the respondent sought to support the trial judge’s judgment on alternative bases. It is unnecessary to refer further to the notice of contention since the occasion to consider it does not arise.[27]
[27]Since it is unnecessary to address the notice of contention (and, for the reasons stated below, the arbiter did not err as the applicant has contended), it is also unnecessary to address the applicant’s undated note, filed with leave shortly after the hearing of this matter, and the first respondent’s response dated 12 November 2024, also filed with leave.
The applicant’s submissions
The applicant contended that he was not performing the role of a Councillor within the meaning of s 28(1) of the LGA when he posted the Facebook comment set out at paragraph 4 above and, therefore, the arbiter had no jurisdiction to hear the application under s 143. The applicant submitted that the trial judge was in error in finding that the arbiter’s approach was substantially correct.
The applicant submitted that the trial judge erred by extending ‘the role of a Councillor’ for the purposes of cl 1 of the Standards of Conduct beyond ‘the role of every Councillor’ described in s 28(1) of the LGA. The result was, so the applicant contended, that the trial judge erred in finding that the expression ‘in performing the role of Councillor’ in cl 1 of the Standards of Conduct was capable of applying to the behaviour of a Councillor in communicating with members of the public about matters for decision before the Stonnington Council.
The applicant submitted that the issue in this case was a limited one: that is, whether the misconduct regime applied to certain behaviour of a Councillor. Senior counsel for the applicant, Ms Foley SC, drew attention to the fact that this was ‘an internal process by an arbiter where the complaint may be made by the Council or by other Councillors only’. This was, in her submission, a reason why ‘it’s things that happen in the Council chamber which are relevant … because only the Council and other Councillors can make a complaint about misconduct’.
The applicant contended that s 28(1) of the LGA made exhaustive provision for the content of the role of a Councillor. The applicant submitted that s 28(2) was consistent with this, because each of the matters identified in s 28(2) ‘can be done by a Councillor in fulfilling each aspect of their role’ as set out in s 28(1). Acknowledging that the LGA referred to the role of a Councillor and to a Councillor’s duties, functions, powers and responsibilities, in the applicant’s submission, these words did not mean the same thing. Rather, so the applicant submitted, such duties, powers, responsibilities and functions attach to particular roles.
The applicant contended that s 28(1)(b) of the LGA was concerned only with the formal act of ‘voting’. At the hearing, Ms Foley SC submitted that ‘the engagement with the community which might inform the way that vote is cast’ was a different thing. She contended that a Councillor represented the interests of the municipal community in formal decision making in the Council chamber or in decision-making by resolution. She accepted that ‘engagement with the community is clearly important and relevant to decision making’ but submitted that it was not ‘the same thing as decision making’.
The applicant contended that, if s 28(1) were read ‘as non-exhaustive’, then there would be uncertainty about the role of the Councillor. Further, so the applicant submitted, the defined ‘role of every Councillor’ was not to be conflated with possible functions outside this role, which in any event ‘can be subject to the serious misconduct and gross misconduct procedures’ also set out in the LGA.
Ms Foley SC submitted that s 28(3) had a clear role to play in the applicant’s construction, in that s 28(3) prevented ‘the potential for overlap between a Councillor who is contributing [to] the strategic direction of the Council and the functions of the CEO’. She submitted that ss 53, 129(d) and 147(2)(c) were not inconsistent with the construction she advanced, because s 28(1) applied to ‘every’ Councillor, whereas a Councillor appointed to the audit and risk committee established under s 53 will have a different role as a member of that committee. Senior counsel submitted that a similar position applied in relation to s 129(d), which referred to representatives of a Council on a not-for-profit organisation, and to s 147(2)(c), which enabled the arbiter to direct that a Councillor against whom a misconduct finding was made be ‘removed from any position where the Councillor represents the Council’ for a period. She submitted that ‘there are other ways in which Councillors may represent the Council, and that … it doesn’t detract from the fact that the role of every Councillor, when they are sitting on the Council and as Councillors, is as set out in s 28(1) of the LGA’.
Referring to Independent Commission against Corruption v Cunneen,[28] Ms Foley SC argued that, given the nature of local government, there was a risk that the arbiter would be unable to discharge his function efficiently ‘because instead of complaints being focused on the role as it is set out in s 28(1)’, it is ‘a much broader range of conduct’. She submitted that there was a ‘risk of the misconduct scheme becoming politicised’ and that these provisions should not therefore be widely construed.
[28](2015) 256 CLR 1, 27 [54]; [2015] HCA 14.
In substance, the applicant contended that his construction was consistent with the objectives of the LGA, set out in s 4. In relation to s 4(b), senior counsel maintained that a Councillor’s engagement with the community was ‘essential’ and informed what the Councillor did in the Council chamber, but that this engagement was not part of ‘the role’ of every Councillor, having regard to the misconduct provisions. Senior counsel referred the Court to page 89 of a 2015 Discussion Paper, which was part of a review of the Local Government Act 1989,[29] preceding the 2015 amendments introducing the provisions with which this case is concerned. She specifically referred to a passage on page 89 stating:
Arguably, some instances of misconduct – alleged and substantiated - against individual councillors have arisen because of a misunderstanding by councillors of their role. For example, a belief that they should have a role in administering council affairs, and, in some cases, directing the CEO or other staff on operational matters. Describing the role of a councillor in the Act could lessen these misconceptions.
In her submission, this showed the problems that might arise if the description of a Councillor’s role in s 28(1) was not treated as exhaustive.
[29]Department of Environment, Land, Water & Planning, Review of the Local Government Act 1989 (Discussion Paper, 2015).
Respondent’s submissions
The respondent submitted that the trial judge correctly concluded that the use of the word ‘every’ in the phrase ‘it is the role of every Councillor’ indicated that ‘the three matters in s 28(1)(a)–(c) constituted only the irreducible minimum of a Councillor’s role’. The respondent contended that the applicant’s construction was artificially narrow and paid insufficient attention to the text of the provision in its statutory context; and that this evidenced the broad nature of a Councillor’s permissible role.[30]
[30]Citing R v A2 (2019) 269 CLR 507, [33]; [2019] HCA 35 (‘R v A2’).
The respondent submitted that s 28(2)(a), (‘considering the diversity of interests and needs of the municipal community’) strongly implied that a Councillor will have taken steps to learn about these interests outside formal decision making by resolution under s 59 of the LGA. The respondent also referred to s 28(1)(b) and (c) as indicative of the fact that communication between a Council and the community fell within the role of a Councillor. The respondent submitted that the negative stipulation in s 28(3) would have no work to do if s 28(1) did not otherwise extend to any of the responsibilities of the Chief Executive Officer.[31] The respondent submitted, more broadly, that the capacities of Councillors identified in ss 53, 129(d) and 147(2)(d) did not come within the applicant’s ‘narrow and exhaustive’ construction of s 28(1). The respondent relied on the fact that the express purpose of the Councillor Code of Conduct (here, the Stonington Code of Conduct) was to ‘include the standards of conduct expected to be observed by Councillors in the course of performing their duties and functions’.[32] The respondent contended that the applicant’s construction was ‘not compatible with a harmonious reading of the Act as a whole’.[33]
[31]Citing Minogue v Victoria (2018) 264 CLR 252, 267 [30]; [2018] HCA 27.
[32]LGA, s 139(2).
[33]Citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69]; [1998] HCA 28.
At the hearing, Ms Bennett SC, senior counsel for the respondent, submitted that s 28(1) was not exhaustive, and that this was borne out by s 28(2) of the LGA. She submitted that s 28(1) ‘is intended to be a broad statement at a high level of the irreducible minimum expectation on each Councillor in their role’. She submitted that, in carrying out the role, a Councillor was performing a function or functions. She submitted that, in this case, the applicant was acting as a Councillor because ‘[h]e was engaging with members of the community about an issue coming for decision before council [and] [t]he appropriateness ... of him casting his vote in relation to a netball stadium for which there was community division’. She submitted that it was a core part of a Councillor’s role to consult with the community about matters for decision. She further submitted that, in so doing, the applicant was performing the role contemplated as by s 28(1)(a) and (1)(b) and s 28(2)(a). She submitted that s 139(2) identified a purpose of the Stonnington Code of Conduct that included setting down the standards expected of a Councillor in performing a Councillor’s duties and functions.
Ms Bennet SC contended that a Councillor may have a role other than those expressly mentioned in s 28 of the LGA, for example, those conferred by statute on an individual because the individual is a Councillor. She submitted that it would be impossible for the Parliament to identify exhaustively every task that would be part of the role of each and every Councillor at all times. She noted the use in cl 1 of Schedule I of the words ‘in performing’ the role of a Councillor. In the respondent’s submission ‘the intention of Parliament was that Councillors carrying out their roles must do all the activities mentioned in s 28 including s 28(2)(b)’.
The respondent submitted that the registrar’s capacity under s 144 to refuse to appoint an arbiter would mitigate the risk of politicisation. The respondent submitted that there was ‘no discernible legislative purpose for peremptorily confining internal arbitrations to an identified subset of a Councillor’s role’.
The respondent acknowledged that the Court would only need to consider his notice of contention in the event that the Court found that s 28(1) was an exhaustive statement of the role of a Councillor.
Consideration
It is agreed that the issue in this case is the proper construction of the phrase ‘in performing the role of a Councillor’ in cl 1 of the Standards of Conduct in Schedule 1 of the Governance and Integrity Regulations (and therefore in cl 5.1 of the Stonnington Code of Conduct). Since the expression ‘role of a Councillor’ in the Standards of Conduct has the same meaning as in the LGA,[34] the argument in this case focussed on s 28 of the LGA.
[34]Interpretation of Legislation Act 1984, s 23.
Section 28 of the LGA, headed ‘Role of a Councillor’ is as follows:
28 Role of a Councillor
(1)The role of every Councillor is –
(a) to participate in the decision making of the Council; and
(b)to represent the interests of the municipal community in that decision making; and
(c)To contribute to the strategic direction of the Council through the development and review of key strategic documents of the Council, including the Council Plan.
(2)In performing the role of a Councillor, a Councillor must –
(a)consider the diversity of interests and needs of the municipal community; and
(b) support the role of the Council; and
(c) acknowledge and support the role of the Mayor; and
(d)act lawfully and in accordance with the oath or affirmation of office; and
(e) act in accordance with the standards of conduct; and
(f) comply with Council procedures required for good governance.
(3)The role of a Councillor does not include the performance of any responsibilities or functions of the Chief Executive Officer.
In substance, s 28(1) provides a very high level statement of the part that every Councillor must perform in local government by virtue of being a Councillor. To ask whether s 28(1) is an exhaustive statement of the role of a Councillor is, however, to ask the wrong question. This is evident on a proper approach to construction of the provision.
The High Court has addressed the proper approach to statutory construction in numerous cases over the last decade or so. For present purposes, it suffices to refer to a statement by Kiefel CJ and Keane J in R v A2 where their Honours described the accepted approach in the following terms:
The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.
Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. …[35]
[35]R v A2, 521 [32]–[33] (Nettle and Gordon JJ generally agreeing).
We turn first to the broader context of s 28 of the LGA. This illuminates its intended operation. Local government, sometimes referred to as the third tier of government, is an important part of the democratic forms of government existing within this State. In conformity with this, s 74A of the Constitution Act 1975 specifically provides that:
(1)Local government is a distinct and essential tier of government consisting of democratically elected Councils having the functions and powers that the Parliament considers are necessary to ensure the peace, order and good government of each municipal district.
(1A) Subject to section 74B, each Council—
(a)is responsible for the governance of the area designated by municipal boundaries; and
(b) is constituted by democratically elected Councillors as the governing body which is—
(i)accountable for its decisions and actions; and
(ii)responsible for ensuring good governance; and
(c)includes an administration which –
(i) implements the decisions if the Council; and
(ii)facilitates the performance of the duties and functions of the Council.
…
The objectives of the LGA, as set out in s 4, reflect the status of local government as part of the State’s democratic government, including its responsibility for the good governance of the municipal district and its accountability for its decisions and actions. These objectives include ensuring that:
(a)local government continues to be constituted as a democratically elected tier of Government in Victoria; and
(b)Councils are constituted as representative bodies that are accountable, transparent, collaborative, efficient and engaged with their communities; and
(c)Councils have the functions and powers necessary to enable Councils to perform their role.
Like s 28 of the LGA, s 8 describes the role of a Council at a high, constitutionally- apposite, level. Section 8 provides that:
(1)The role of a Council is to provide good governance in its municipal district for the benefit and wellbeing of the municipal community.
(2)A Council provides good government if –
(a) it performs its role in accordance with section 9;
(b)the Councillors of the Council perform their roles in accordance with section 28.
...
Significantly, s 8(2) indicates that the role of a Council in s 8(1) is intended to complement the role of a Councillor in s 28, in the sense that the provision of good government in the municipality depends on the Council and its Councillors fulfilling their roles as described in those two provisions. As will be seen, s 8(2)(a) requires a Council to perform its role in accordance with s 9. Amongst other things, ss 9(1), (2)(d) and (3)(a) define the role of a Council in terms of community engagement. These provisions provide context to ss 28(1)(a) and (2)(b).
Sections 8 and 28 of the LGA respectively set out the part a Council and every Councillor is bound to play in the government of the municipality at the level of broad, constitutional principle. The fact that s 28(1) applies to ‘every’ Councillor supports the view that s 28(1) provides a constitutionally appropriate statement of what part a Councillor plays in municipal government. Understood in this way, this may be described as an ‘irreducible minimum’ as the trial judge did.
The statement in s 28(1) does not purport to set out all the duties and functions that a Councillor may perform as a Councillor in fulfilling the role set out in that provision. To perform the role a Councillor will necessarily engage in various diverse acts or activities suited to the relevant aspect of the role the Councillor is performing. Some of these acts or activities may properly be described as ‘duties and functions’ within the meaning of s 139(1) of the LGA.
Indeed, this is implicit in s 28(2), which specifically provides that ‘[i]n performing the role of a Councillor’ a Councillor must do certain things, including ‘consider the diversity of interests and needs of the municipal community’ and ‘act in accordance with the standards of conduct’. Section 28(2) would have little, if any, useful operation, if the description of the ‘role of every Councillor’ in s 28(1) were construed to exclude the actions designed to give effect to s 28(2), including considering the diversity of interests mentioned in s 28(2)(a) or supporting the role of the Council or the Mayor in s 28(2)(b) and (c). Of course, as s 28(3) makes plain, the one thing a Councillor cannot do is perform a responsibility or function pertaining to the Chief Executive Officer. This indicates perhaps that, absent s 28(3), a Councillor’s role could extend so far (although in this case there is no suggestion that the prohibition is at risk of contravention).
Having regard to the fact that ss 8 and 28 of the LGA are provisions concerned with the role of the Council and its Councillors in the third tier of government, it is appropriate to construe them broadly rather than narrowly. To construe ‘decision-making’ in s 28(1)(a) and (b) as limited to the formal casting of a vote by the Councillor in the Council Chamber is to focus on the ultimate expression of only one kind of decision a Councillor may be called on to make. Furthermore, ‘decision making’ most commonly refers to ‘the process by which a person arrives at a decision, blending knowledge, experience and intuition’: see Macquarie Dictionary online. It seems more probable than not that the Parliament intended ‘decision making’ should be understood in this ordinary sense because this would afford s 28(2)(a) an operation that conforms more closely to other provisions of the LGA. That is, assuming decision making is such a process, s 28(1)(b) and (2)(a) would operate to require a Councillor to acquire information about ‘the diversity of interests and needs of the municipal community’ in ‘representing the interests of the municipal community in the decision making of the Council’, as contemplated by s 28(1)(b) of the LGA. Further, as previous discussion discloses, in conformity with s 74 of the Constitution Act 1975, the LGA emphasises the democratic nature of local government in numerous places, including in s 4 (legislative objectives) and s 9 (‘overarching governance principles and supporting principles’, including ‘the community engagement principles’ to which a Council must give effect).[36] These considerations further support the broader construction of decision making for which the respondent argued.
[36]Sections 55 and 56 of the LGA makes further provision for a ‘community engagement policy’ and ‘community engagement principles’. Section 56(e) of the LGA contemplates that the community engagement process will ‘influence Council decision making’.
Other provisions of the LGA, such as ss 53, 129(d) and 147(2)(d), are consistent with this broader construction. Each of these provisions contemplates that a Councillor may have membership of other bodies in the capacity as Councillor or a representative of the Council. Acting in this capacity, a Councillor is fulfilling the role as a Councillor by acquiring information as part of the decision making contemplated in s 28(1)(a); by representing the interests of the municipal community in decision-making as contemplated by s 28(1)(b); or by acquiring information to contribute to the strategic direction of the Council as contemplated by s 28(1)(c) of the LGA.
The fact that the LGA contemplates that a Councillor will engage in various different acts or activities to fulfil the Councillor’s role, some of which may be described as ‘duties and functions’ within the meaning of s 139(1) of the LGA is relevant because s 139(1) expressly provides that the purpose of the Councillor Code of Conduct (which finds expression in the Standards of Conduct in cl 1 of Schedule I of the Governance and Integrity Regulations) is to ‘include the standards of conduct expected to be observed by Councillors in the course of performing their duties and functions as Councillors’ (emphasis added). Section 139 does not mention the ‘role’ of a Councillor, as described in s 28(1) of the LGA, which is apposite given the higher level of the matters to which s 28(1) is directed.
Plainly enough, in this case, as the respondent submitted, the acts that concerned the arbiter were the applicant’s ‘engaging with members of the community about an issue coming for decision before council’. This was the issue of the netball stadium. As senior counsel for the respondent indicated, there was a further issue of the ‘appropriateness of him casting his vote’. These issues were plainly relevant to the members of the municipal community whom he represented.
Under s 28(1)(a) and (b) of the LGA, it is every Councillor’s role to participate in the Council’s decision making and to represent the interests of the municipal community. Furthermore, s 28(2)(a) requires that, in performing this role, a Councillor must ‘consider the diversity of interest and needs of the municipal community’. It follows from this that, as the respondent submitted, the applicant was in fact performing the role of a Councillor referred to in s 28(1)(a) and (1)(b) of the LGA in conformity with s 28(2)(a) at the time he made his ill-judged remarks on social media. In this circumstance, cl 1 of Schedule 1 to the Governance and Integrity Regulations (the Standards of Conduct) was engaged since the clause applied to conduct ‘in performing the role of a Councillor’. The applicant was therefore required to conform to the standard of conduct set down in cl 1(c) when making these remarks.
As we have seen, the applicant advanced one practical reason why the high-level language of s 28(1) should be narrowly construed. This was the fact that, as only a Councillor or Councillors could initiate the misconduct provisions (applicable to breach of the Standards of Conduct) there was a risk of politicisation of that misconduct regime, and that this consideration favoured the more limited construction for which the applicant argued. As the respondent submitted, however, the risk of an improper internal arbitration application is largely removed by s 144 of the LGA. Pursuant to s 144, an application for an internal arbitration process under s 142 is subject to examination by the Principal Councillor Conduct Registrar. Before an arbiter can be appointed and the arbitration process begun, this officer must be satisfied that the application is not ‘frivolous, vexatious, misconceived or lacking in substance’ and ‘there is sufficient evidence to support an allegation of a breach of the Councillor Code of Conduct’. If not so satisfied, then the Principal Councillor Conduct Registrar must reject the application. Accordingly, there is no practical objection to the construction for which the respondent contends.
A further matter: Hardiman principle
The first respondent appeared at the hearing before the trial judge in what his senior counsel described as ‘an attenuated Hardiman position’ in that the first respondent made submissions confined to the applicable statutory provisions particularly as they affected the powers of the first respondent. There was no appearance for the second respondent, who had previously filed a notice of intention not to respond to the applicant’s leave application. We considered that this was appropriate and did not offend the principle in Hardiman’s case.[37] We noted that much the same course was accepted as appropriate in Fagan v Crimes Compensation Tribunal where the Tribunal appeared by counsel as respondent to contest the appellant’s case.[38] Brennan J (as he then was) commented that:
Where curial proceedings arise out of a matter which is contested between parties appearing before a tribunal, it is not ordinarily appropriate for the tribunal to appear to contest the curial proceedings brought by one of the parties before it ... But where the proceedings before the tribunal are not inter partes, and where the Attorney-General cannot or does not intervene to represent the public interest ... and neither a law officer nor a public official is heard by the court ... it may be desirable that the tribunal should appear by counsel to make such submissions as it thinks calculated to assist the court and, in an appropriate case, to argue against the applicant's case.[39]
[37]Hardiman, 35–6.
[38](1982) 150 CLR 666; [1982] HCA 49 (‘Fagan’).
[39]Fagan, 681–2.
Conclusion
For the reasons stated above, the trial judge did not err in finding that the arbiter’s approach was substantially correct, and that the expression ‘in performing the role of Councillor’ in cl 1 of the Standards of Conduct (and therefore in the Councillor Code of Conduct and the Stonnington Code of Conduct) was capable of applying to the behaviour of a Councillor in communicating with members of the public about matters for decision before a Council, in this case, the Stonnington Council.
Accordingly, we would grant leave to appeal and dismiss the appeal. Our preliminary view, subject to hearing from the parties, is that the appellant should pay the first respondent’s costs of the proceeding on the standard basis.
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SCHEDULE OF PARTIES
COUNCILLOR ALEXANDER LEW First applicant and YEHUDI BLACHER IN HIS CAPACITY AS AN ARBITER APPOINTED PURSUANT TO S 142 OF THE LOCAL GOVERNMENT ACT 2020 First respondent COUNCILLOR POLLY MORGAN Second respondent
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