Lew v Blacher

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 02174

COUNCILLOR ALEXANDER LEW	Plaintiff
v
YEHUDI BLACHER (in his capacity as an arbiter appointed pursuant to s 142 of the Local Government Act 2020 (Vic))	First defendant
COUNCILLOR POLLY MORGAN	Second defendant

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JUDGMENT

JUDGE:	Gray J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 July 2023
DATE OF JUDGMENT:	13 October 2023
CASE MAY BE CITED AS:	Lew v Blacher
MEDIUM NEUTRAL CITATION:	[2023] VSC 604

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ADMINISTRATIVE LAW – Judicial review – Internal arbitration of application alleging misconduct by a Councillor – Review of decision of arbiter – Finding of misconduct –Prescribed standards of conduct of Councillors – Social media post on Councillor’s private account relating to matters for decision by Council – Whether in performance of the role of a Councillor – Local Government Act 2020, ss 28, 139, 143, 145, 147 – Local Government (Governance and Integrity) Regulations 2020, reg 12, sch 1 – Confidentiality of information provided to arbiter other than findings and reasons of arbiter – Disclosure in court of material subject to confidentiality – Open Courts Act 2013, s 20 – Confidentiality and inspection of court file – Supreme Court (General Civil Procedure) Rules 2015, r 28.05(4).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	R Walsh	Kingston Reid
For the First Defendant	A Solomon-Bridge	VGSO

TABLE OF CONTENTS

Overview.............................................................................................................................................. 1

Legislative scheme relating to Councillor conduct..................................................................... 2

Avenue for dealing with ‘misconduct’ allegations.................................................................. 4
Avenues for dealing with ‘serious misconduct’ and ‘gross misconduct’ allegations......... 6

Legislative history and extrinsic material..................................................................................... 7

Relevant background and facts..................................................................................................... 12

The standards of conduct........................................................................................................... 12
City of Stonnington’s Councillor Code of Conduct............................................................... 14
Subject matter of application to arbiter.................................................................................... 15
Arbiter’s decision........................................................................................................................ 17

Analysis.............................................................................................................................................. 19

Nature of the judicial review proceeding and issues for determination............................ 19
General principles....................................................................................................................... 21
The statutory construction issues............................................................................................. 22
Overview of parties’ competing constructions of ‘role of a Councillor’................... 22
Is s 28(1) exhaustive?......................................................................................................... 24
Competing interpretations of the scope of ss 28(1)(a) and (b).................................... 27
Further or alternative argument supporting broad interpretation of ss 28(1)(a) and (b) 32
Is the phrase, ‘role of a Councillor’ in the standards of conduct defined by s 28(1) of the Act?.................................................................................................................................. 33
Coherent operation to give effect to harmonious goals............................................... 34
Related provisions............................................................................................................. 35

Conclusion on the construction of ‘the role of a Councillor’................................................ 37
Significance of Stonnington Code section 7.2 to the outcome of this case......................... 38
Conclusions on the grounds of judicial review...................................................................... 39

Confidentiality issues and admission of evidence................................................................... 44

Admissibility issues.................................................................................................................... 44
Confidentiality issues................................................................................................................. 45

Open Courts Act issues.................................................................................................................... 47

Orders................................................................................................................................................. 51

Annexure A....................................................................................................................................... 52

HIS HONOUR:

Overview

This is an application for judicial review[1] of a decision of an arbiter under pt 6 div 5 of the Local Government Act 2020 (Act).[2]
[1]Pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Rules).
[2]These reasons for judgment adopt the definitions, including capitalisations, set out in s 3(1) of the Act.

The plaintiff is a former Councillor of Stonnington City Council (Council), Mr Alexander Lew. The second defendant, Cr Morgan, made an application for internal arbitration alleging that Mr Lew engaged in misconduct. The first defendant, Mr Blacher, was appointed as the arbiter.

The application alleged that Mr Lew had posted remarks on social media that disparaged unnamed Councillors and a person outside the Council, Mr Brendan Corr. The material indicated that Mr Corr had previously made distasteful remarks to Mr Lew and regarding others on social media.

The arbiter found that Mr Lew had engaged in misconduct in posting his remarks and issued a sanction requiring training, which Mr Lew completed. Mr Lew later resigned his office as a Councillor.

In this proceeding, Mr Lew seeks a declaration that the arbiter’s decision was ultra vires or unlawful, and of no effect. He relies on five grounds, each of which depends on a common question of statutory interpretation about the scope of ‘misconduct’ and ‘the role of a Councillor’.

Cr Morgan indicated that she did not intend to take an active role in the proceeding. The arbiter, through his counsel, described the role he was performing in the proceeding as ‘an attenuated Hardiman position’.[3] I took this to mean that he was assisting the Court and making submissions on the law, but not actively resisting Mr Lew’s claim.
[3]See R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, 35–6.

The parties made competing submissions about ‘the role of a Councillor’. It is necessary to assess those submissions by reference to settled principles of statutory interpretation. These principles require attention to be given to the text used, and for that text to be understood in its context, including related provisions, legislative history and extrinsic material.

I have decided that the phrase ‘in performing the role of a Councillor’ is capable of applying to behaviour of a Councillor in communicating with members of the public about matters for decision before the Council. The arbiter made no material error of law in his understanding of the scope of his jurisdiction. This leads me to reject all the grounds of review pressed by Mr Lew.

During the hearing, certain information that was apparently confidential under the Act[4] was read out in open court by Mr Lew’s counsel. On the Court’s own motion, I made an interim suppression order. Shortly after the hearing, I provided a draft ruling to the parties on outstanding issues of admissibility of evidence and confidentiality in which I included a proposal to vacate the interim suppression order, and I invited responding submissions. At about the same time, the arbiter’s counsel provided a submission in writing that I should make a substantive suppression order, with a proposed duration of ten years. I have decided not to do so, but to allow a short period for any person with a legitimate interest to apply for a substantive order. Also, as foreshadowed at the hearing, I have decided to make orders preventing inspection by non-parties of certain of the documents on the court file, even though I received them into evidence. I address these admissibility, confidentiality and suppression order issues at the end of these reasons.
[4]Act s 145.

Legislative scheme relating to Councillor conduct

I have considered two recent decisions of the Court relating to the provisions of the Act regulating Councillor conduct.[5] The second of these, Lew v Harvey & Anor, arose from an application for internal arbitration alleging misconduct, although the grounds of judicial review of the arbiter’s decision were different from the present case. In Lew v Harvey & Anor, Tsalamandris J summarised the key provisions of the Act as they relate to Councillor misconduct and the internal arbitration process.[6] I respectfully adopt her Honour’s analysis as the framework for what follows.
[5]Chief Municipal Inspector, Local Government v Mohamud [2021] VSC 787; (2021) 66 VR 1 (Chief Municipal Inspector v Mohamud); Lew v Harvey & Anor [2023] VSC 477 (Lew v Harvey & Anor).
[6]Lew v Harvey & Anor, [12]–[24].

There are three categories of behaviour of Councillors that can be sanctioned under the Act, referred to as ‘misconduct’, ‘serious misconduct’ and ‘gross misconduct’. Although these expressions might suggest that the behaviour concerned is of a similar kind — differentiated only by the level of seriousness involved — that is not the case. The definition of each expression reveals other differences.

‘Gross misconduct’ is behaviour of any kind that ‘demonstrates that the Councillor … is not of good character … or …. is otherwise not a fit and proper person to hold the office of Councillor …’. There is no requirement that the behaviour be in the course of performing the Councillor’s role, functions or duties, or in any way connected with them.

In contrast, as will become evident in the course of analysis of the relevant provisions below, the legislative scheme constituted by the Act and the Local Government (Governance and Integrity) Regulations 2020 (Regulations) confines ‘misconduct’ to behaviour in the course of performing a Councillor’s functions or duties, or behaviour in performing a Councillor’s ‘role’.

‘Serious misconduct’ is not so strictly confined as ‘misconduct’, but is largely defined by reference to various kinds of behaviour that have a connection with a Councillor’s functions or position. According to the definitions in the Act, one type of ‘serious misconduct’ is repeated ‘misconduct’ after a finding of ‘misconduct’ has been made. All the other types of ‘serious misconduct’ expressly relate to the Council, its business or its people, such as non-compliance with statutory processes relating to allegations of misconduct, serious misconduct, disclosure of confidential information, directing a member of Council staff, failure to declare a conflict of interest, and bullying or sexually harassing another Councillor or a member of Council staff.

Avenue for dealing with ‘misconduct’ allegations

‘Misconduct’ is defined as ‘any breach by a Councillor of the prescribed standards of conduct included in the Councillor Code of Conduct’.[7]
[7]Act ss 3(1), 143(1).

Under the Act, a Council must develop a Councillor Code of Conduct, the purpose of which ‘is to include the standards of conduct expected to be observed by Councillors in the course of performing their duties and functions as Councillors’, and which must ‘include the standards of conduct prescribed by the regulations expected to be observed by Councillors’.[8] The Code adopted by each Council is an important element of the framework envisaged by the legislative scheme governing the role of its Councillors. Each Council must review and adopt its Councillor Code of Conduct within four months of a general election.[9] Adoption or amendment of a Code of Councillor Conduct requires a resolution supported by two-thirds of elected Councillors.[10] An elected candidate does not become a Councillor until taking the oath or affirmation prescribed under the Regulations, and the prescribed form of oath or affirmation requires Councillors to swear or affirm that they will comply with the Code of Councillor Conduct.[11] A Councillor Conduct Panel may direct a Council to amend its Councillor Code of Conduct.[12]
[8]Act ss 139(1), (2), (3)(a). Section 139(2) states that the purpose of the Councillor Code of Conduct also includes ‘prohibiting discrimination, harassment (including sexual harassment) and vilification’. Section 3(1) includes a defined term, ‘standards of conduct’ which means ‘the standards of conduct prescribed under section 139(3)(a) to be included in a Councillor Code of Conduct’. Section 139(3)(d) provides that the Councillor Code of Conduct may include any other matter that the Council considers appropriate, other than any other standards of conduct.
[9]Act ss 139(1), (4).
[10]Act ss 139(5), 140(2).
[11]Act s 129(1)(a); Regulations reg 5.
[12]Act s 167(9).

The Act establishes an ‘internal arbitration process’ that ‘applies to any breach of the prescribed standards of conduct’.[13]
[13]Act s 141(1).

Where Councillor misconduct is alleged, the Council (following a resolution of the Council), a Councillor or a group of Councillors may make an application for an internal arbitration process to the Principal Councillor Conduct Registrar.[14] This application must be made within three months of the alleged misconduct.[15]
[14]Act s 143(2).
[15]Act s 143(3).

After examination of an application alleging misconduct, there are two courses open to the Registrar. If the Registrar is satisfied that the application is not frivolous, vexatious, misconceived, or lacking in substance, and that there is sufficient evidence to support an allegation of a breach of the Councillor Code of Conduct, the Registrar must appoint an arbiter to hear the matter.[16] If not satisfied of the above, the Registrar must reject the application.[17]
[16]Act s 144(1).
[17]Act s 144(2).

If required to appoint an arbiter, the Registrar must select an arbiter from the panel list, which is established by the Secretary and comprises as many eligible persons as the Secretary considers appropriate.[18] Once appointed, the arbiter may hear the application and must ensure that parties involved in the internal arbitration process are given an opportunity to be heard.[19] The hearing must be conducted with as little formality and technicality as the proper consideration of the matter permits, and arbiters are not bound by the rules of evidence. Hearings must not be open to the public, and may be conducted in person, in writing or online.[20]
[18]Act s 142.
[19]Act s 141(2)(b).
[20]Regulations regs 11(2)–(3).

If, upon completion of the internal arbitration process, the arbiter determines that a Councillor has failed to comply with the standards of conduct, the arbiter may make a finding of misconduct against the Councillor.[21] Following a finding of misconduct, the arbiter may direct the Councillor to make an apology, suspend the Councillor from office for a specified period no longer than one month, direct that the Councillor be removed from any Council position where the Councillor represents the Council or from being the chair of a delegated committee for a period determined by the arbiter, or direct the Councillor to attend training or counselling.[22] Failure to comply with the directions of the arbiter constitutes serious misconduct, which can be the subject of an application to a Councillor Conduct Panel pursuant to pt 6 div 7 of the Act.[23]
[21]Act s 147(1).
[22]Act s 147(2).
[23]Act s 3(1) (definition of ‘serious misconduct’).

Section 145 of the Act is relevant to the confidentiality issues I address at the end of these reasons. It provides:

Information provided to an arbiter or produced by an arbiter for the purpose of an internal arbitration process, other than the findings and the reasons, is confidential information.

The arbiter must provide a copy of the arbiter’s decision and statement of reasons to the Council, the applicant(s), the respondent and the Registrar, which must be tabled at the next Council meeting.[24] If the arbiter’s decision and statement of reasons contain any confidential information, the confidential information must be redacted from the copy tabled.[25]
[24]Act ss 147(3)–(5).
[25]Act s 147(5).

Avenues for dealing with ‘serious misconduct’ and ‘gross misconduct’ allegations

An application alleging serious misconduct can be made directly by the Council, a Councillor or a group of Councillors, or the Chief Municipal Officer, within 12 months of the alleged serious misconduct occurring.[26] It is to be given to the Principal Conduct Registrar, who must (subject to examination of the application by reference to certain threshold requirements) appoint a Councillor Conduct Panel to decide it.[27]
[26]Act ss 154(2)–(3).
[27]Act ss 153(5), 155.

The Chief Municipal Inspector’s functions include ‘to investigate any allegation of serious misconduct or gross misconduct by a Councillor’. There is no express limit placed on who can raise such an allegation with the Chief Municipal Inspector.[28]
[28]Act s 182(2)(c).

The potential consequences of a finding of serious misconduct include reprimanding the Councillor, directing the Councillor to make an apology, suspending the Councillor from office for a period not exceeding 12 months, and directing that the Councillor is ineligible to chair a delegated committee for a period not exceeding the remainder of the Council’s term.[29] The Councillor Conduct Panel may also direct the Councillor to attend mediation, training or counselling.[30] Where a Councillor has breached one or more of the standards of conduct and the application for a finding of serious misconduct was made to the Councillor Conduct Panel within three months of the breach, the Panel may make a finding of misconduct with potential consequences that include directing that the Councillor be removed from any position in which they represent the Council for a period determined by the Councillor Conduct Panel.[31]
[29]Act s 167(3).
[30]Act s 167(6).
[31]Act ss 167(1)(b), (4)(c).

An application alleging gross misconduct may only be made to the Victorian Civil and Administrative Tribunal (VCAT), and may only be made by the Chief Municipal Inspector.[32] If VCAT makes a finding of gross misconduct, it may order that the Councillor be disqualified from office for up to eight years and that the office be vacated.[33]
[32]Act pt 6 div 7 s 171.
[33]Act s 172.

Legislative history and extrinsic material

The predecessor of the Act was the Local Government Act 1989 (1989 Act). Prior to reform in 2003, the 1989 Act did not contain any scheme for the regulation of Councillor conduct. Nor did it contain a provision setting out the role of a Councillor, or listing the functions or duties of a Councillor.[34]
[34]See Version 64, Local Government Act 1989.

The Local Government (Democratic Reform) Act 2003 introduced into pt 4 of the 1989 Act a new div 1A entitled ‘Conduct and interests’. Division 1A included s 76B, identifying the rules of conduct to be followed ‘in performing the role of a Councillor’, and s 76C, requiring that each Council develop a Code of Conduct which, inter alia, was to include the rules of conduct and ‘processes for the purpose of resolving an internal dispute between Councillors’.[35] The rules of conduct in s 76B were not detailed. They included general duties of honesty and of reasonable care and diligence. The amending Act also added a provision facilitating the imposition of a surcharge for misconduct by a Councillor causing loss.[36]
[35]1989 Act ss 76C(3)(a)–(b).
[36]1989 Act s 204A(1)(b).

The Local Government Amendment (Councillor Conduct and Other Matters) Act 2008 substituted the rules of conduct in s 76B for a ‘primary principle’ of Councillor conduct and introduced s 76BA into the 1989 Act, adding further general conduct principles that Councillors must follow ‘in performing the role of a Councillor’. These principles were considerably more detailed than the previous rules of conduct, and the general conduct principles included a duty to treat all persons with respect. A new s 76C was added, requiring Councils to develop and approve Councillor Codes of Conduct that were required to include the Councillor conduct principles and were permitted but not required to set out processes for the purpose of resolving an internal dispute between Councillors. Although all the principles in both s 76B and s 76BA applied ‘in the performance of the role of a Councillor’, there was not yet a provision setting out that role.

A provision setting out that role was first enacted by the Local Government Amendment (Improved Governance) Act 2015 (2015 Amending Act).[37] The purpose of the 2015 Amending Act was to amend the 1989 Act relevantly to enhance the governance standards of Councils, provide for the appointment of a ‘Chief Municipal Inspector’, and further provide for the resolution of allegations of Councillor misbehaviour using the internal processes of Councils.[38] It inserted s 65, setting out the role of a Councillor. This was the origin of what was to be s 28 of the Act.
[37]Commenced 18 November 2015, with further relevant amendments commencing on 1 March 2016.
[38]Local Government Amendment (Improved Governance) Act 2015 ss 1(a)(i)–(ii), (iv)–(v).

As can be seen below, s 65(1) of the 1989 Act (as amended in 2015) used words that were similar — but not identical — to the words later appearing in s 28(1) of the Act. I address the significance I attach to the difference between s 65(1) and s 28(1) later in these reasons. Subsection 65(2) specified a set of requirements that must be observed ‘in performing the role of a Councillor’, including a provision that related to effective communication between the Council and the community. This provision, along with other aspects of s 65(2), was subsequently omitted from what was to become s 28(2) of the Act. Subsection 65(3) was to substantially the same effect as the words later used in s 28(3). I set out s 65 in full below:

65 What is the role of a Councillor?
(1)The role of a Councillor is—
(a)to participate in the decision-making of the Council; and
(b)to represent the local 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 local community; and
(b)observe principles of good governance and act with integrity; and
(c)provide civic leadership in relation to the exercise of the various functions and responsibilities of the Council under this Act and other Acts; and
(d)participate in the responsible allocation of the resources of Council through the annual budget; and
(e)facilitate effective communication between the Council and the community.

(3)The role of a Councillor does not include the performance of any functions that are specified as functions of the Chief Executive Officer under section 94A.

Note
See Part 1A which sets out the local government charter and in particular section 3D which specifies the role of a Council.”

At the time of the 2015 Amending Act, the 1989 Act relevantly provided for applications to a Councillor Conduct Panel for a finding of misconduct or for authorisation of an application to VCAT for a finding of serious misconduct on the basis of a ‘reasonable grounds’ test,[39] and for applications alleging gross misconduct to be made directly by the Secretary of the relevant department to VCAT.[40]
[39]1989 Act ss 81B, 81J(1)(b).
[40]1989 Act ss 81E, 81K.

The parties placed extrinsic material before the Court to explain the purposes of the 2015 Amending Act. The second reading speech included the following in relation to governance improvements: [41]

This bill will improve standards of governance and the conduct of councillors in local governments across Victoria.
…
In a further measure to encourage better understanding of what is expected of them in terms of their behaviour and their role as councillors, the bill defines the roles of a councillor and mayor for the first time. The role of a councillor is set out in the bill as participating in decision making of the council, representing the local community in that decision making, and contributing to the strategic direction of the council. …

[41]Local Government Amendment (Improved Governance) Bill 2015: Victoria, Parliamentary Debates, Legislative Assembly, 3 September 2015, 3017–3111 (Natalie Hutchins, Minister for Local Government).

As previously noted by Quigley J in Chief Municipal Investigator v Mohamud,[42] the 2015 amendments arose in the context of a review described in a government discussion paper (2015 Discussion Paper).[43] Chapter 4 of the discussion paper was entitled, ‘How Councils operate’. At page 46 of this chapter, the following appeared:

The Act makes a clear distinction between the council (as employer of the CEO) and the CEO (as the employer of council staff) making it explicit that councillors have no role in staff employment issues. …
Despite this demarcation in reporting lines between councillors, CEO and staff, conflicts often occur over day to day interaction between them. Another concern is there may be insufficient guidance in the Act for CEOs to advise councillors where the council’s proposed actions may be unlawful.
In response to these concerns, the reforms at Appendix 2 include specifying additional functions of the CEO in the Act including:
·ensuring that the council receives timely and reliable advice about its legal obligations under any Act
·managing interactions between council staff and councillors including by ensuring policies, practices and protocols are in place.

[42]Chief Municipal Investigator v Mohamud, [29].

[43]State of Victoria Department of Environment, Land, Water and Planning, ‘Review of the Local Government Act 1989’ (Discussion Paper, 2015).

Chapter 8 of the discussion paper was entitled, ‘Councillor conduct, offences and enforcement’. It noted that the framework for dealing with Councillor misconduct in divs 1A and 1B of pt 4 of the 1989 Act had been operating since 2008, with some changes made in 2010 that are immaterial to the present case.[44]

The current framework has not effectively managed councillor conduct issues to prevent reputational damage to individual councils and the sector as a whole. In some instances the capacity to bring complaints and apply for panel hearings seems to have exacerbated behavioural issues and elevated misconduct as a problem. This is borne out by an increase in the number of requests for panels to be established.
The minister has indicated that she intends to bring forward reforms to the framework. An overview of the reforms being considered is at Appendix 2. Consultation is currently underway and the minister has flagged that legislation may be introduced into Parliament this year. Possible changes are flagged in the relevant section in the discussion that follows

[44]The 2010 amendments related to the dissolution of Conduct Panels, the constitution of VCAT and payment of VCAT costs.

The chapter went on to observe that there was currently no description of the role of a Councillor in the 1989 Act and to make a connection between this and some instances of misconduct:

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.

The 2015 Amending Act added a new div 1AB to pt 4 of the 1989 Act, entitled ‘Internal resolution procedure of Council’. Section 81AA provided that a Council must develop and maintain an internal resolution procedure for the purposes of addressing an alleged contravention of the Councillor Code of Conduct by a Councillor. Section 81B of the 1989 Act was amended to provide for applications alleging serious misconduct by a Councillor to be heard by a Councillor Conduct Panel, where ‘misconduct’ meant failure by a Councillor to comply with the internal resolution procedures in the Councillor Code of Conduct or repeated contraventions of the Councillor conduct principles in the 1989 Act.

In short, following the 2015 Amending Act, the hierarchy for management of different kinds of Councillor behaviour was that breaches of Councillor Codes of Conduct would generally be the responsibility of Councils under internal resolution procedures, allegations of misconduct or serious misconduct would be the responsibility of a Councillor Conduct Panel, and allegations of gross misconduct would be the responsibility of VCAT.

On 24 March 2020, the Act received the Royal Assent. It came into operation in stages on different dates, progressively replacing provisions of the 1989 Act addressing corresponding subject matter. The 1989 Act remains in force, though with much of its previous subject matter now dealt with in the Act.

Relevantly for this proceeding, ss 18–38 and ss 123–174 of the Act commenced on 24 October 2020.[45] On that day, s 28 set out the role of a Councillor and s 139 of the Act provided for the making of standards of conduct to be included in Councillor Codes of Conduct. At the same time, s 65 and pt 4 div 1A of the 1989 Act (relevantly containing ss 76B–76C) were repealed.[46]
[45]Act ss 2(3)(a)–(b).
[46]Act ss 2(3)(d), 361(c)–(d).

Relevant background and facts
The standards of conduct

The standards of conduct, set out in sch 1 to the Regulations, also commenced on 24 October 2020. Regulation 12 of the Regulations identifies the standards in sch 1 as the prescribed standards of conduct for the purposes of s 139(3)(a) of the Act.

Clause 1 of the standards of conduct provides:

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.

Clauses 2, 3 and 4 of the standards of conduct are all introduced by words that include the phrase, ‘in performing the role of a Councillor’.

Clause 2 of the standards of conduct is entitled ‘Performing the role of Councillor’. It provides that a Councillor ‘must, in performing the role of a Councillor, do everything reasonably necessary to ensure that the Councillor performs the role of a Councillor effectively and responsibly’, including certain specified things. These include training, and ‘diligently [using] Council processes to become informed about matters which are subject to Council decisions’.

Clause 3 is entitled ‘Compliance with good governance measures’. It provides that a Councillor, ‘in performing the role of a Councillor, to ensure the good governance of the Council, must diligently and properly comply with’ policies for managing interactions with members of Council staff under s 46 of the Act, the Council expenses policy under s 41 of the Act, the Governance Rules under s 60 of the Act, and any directions of the Minister under s 175 of the Act.

Clause 4, entitled ‘Councillor must not discredit or mislead Council or public’ is separated into two substantive provisions, each introduced by ‘In performing the role of a Councillor’. Sub-clause 4(1) requires a Councillor to ensure that their behaviour does not bring discredit upon the Council, and sub-cl 4(2) prohibits a Councillor from deliberately misleading the Council or the public ‘about any matter related to the performance of their public duties’.

City of Stonnington’s Councillor Code of Conduct

On 15 February 2021, the Council adopted the City of Stonnington’s Councillor Code of Conduct bearing that date (Stonnington Code).

The Stonnington Code was arranged thematically in ten numbered parts, several of which contained a section entitled ‘Standard’ relating to the relevant theme. The most relevant of these was section 5.1 of the Stonnington Code, which appeared in a part entitled ‘Treatment of others’. The introductory words of clause 5.1 and its subparagraphs (a)–(d) were identical to clause 1 of the standards of conduct, reproduced above. Various other contents of the Stonnington Code reflected the other clauses of the standards of conduct.

In part 7, entitled ‘Roles and Responsibilities’, there appeared section 7.2 of the Stonnington Code, which is significant to the outcome of this proceeding for reasons I explain later in these reasons. It relevantly stated (emphasis added):

7.2 The Role of the Councillor
Being a councillor is one of the most rewarding forms of public service. As a democratically elected local representative, their role is a unique and privileged position which has the potential to make a real difference to people’s lives and the community.
Being a good Councillor is demanding and an expectation exists to balance the needs and interests of the local area and residents, community groups, local businesses and the Council. Legitimate demands will be made for time in addition to the existing commitments to family, friends and career.
Councillors will have many different roles to balance. First and foremost, a Councillor will represent their ward, engaging with residents and groups … on a wide range of different issues and taking on an important community leadership role.
At the Council, they will contribute to the development of policies and strategies, including its budget setting and may be involved in reviewing staff recommendations or making decisions on planning matters. Councillors provide a bridge between the community and the Council.
As a Councillor they are responsible for making fair and just decisions in the best interests of all residents and the wider Stonnington community.
… [text paraphrasing ss 28(1) and (2) of the Act then followed]
…

Subject matter of application to arbiter

Between about October 2020 and December 2022, Mr Lew was a Councillor on the Council.

The social media post that became the subject of the allegation of misconduct against Mr Lew was made in the context of a series of interactions on Facebook between Mr Corr and Mr Lew and others. It is necessary to say something of this context in a manner that does not identify any of the other people named in any of the contextual posts.

Some time ago, a video was posted to YouTube parodying a scene from the German language film ‘Downfall’, which dramatises the last days of Adolf Hitler. It appears that in about November 2020,[47] an edited version of that video was posted to the ‘Residents Living in the Federal Electorate of Higgins’ Facebook group (Residents Facebook Group). In the edited video, the subtitles of the video attributed the name of a Stonnington resident to the actor playing Hitler, and the subtitles referred to various named Stonnington residents, including sexualised and disparaging references to two women. Mr Corr posted a comment ‘hahahaha’ on the video in the Residents Facebook Group, tagging five of the residents named in it, including the two women.
[47]The Court was informed by counsel for Mr Lew that these events occurred on a date in November 2020.

Various residents appear to have then complained to the Council about Mr Corr’s conduct via email. Mr Lew — at the time a Councillor — also raised the issue within the Council via email.

In about December 2020, Mr Lew and Mr Corr had a late night exchange of messages over Facebook Messenger in relation to a proposed netball stadium being reviewed by the Council. In this conversation, Mr Corr allegedly made a number of distasteful comments to Mr Lew referring to crucifixion of Mr Lew. Mr Lew later said he considered them to have an antisemitic undercurrent.

On 25 July 2021, Mr Corr posted to the Residents Facebook Group, alleging that Mr Lew had a conflict that should have precluded him from any involvement in the Council’s review of the location of a proposed netball stadium. In the comment section of the post, Mr Corr made further allegations against Mr Lew. Mr Lew responded to the post and its comments, using his personal Facebook account to do so. In his responses, Mr Lew made the following two statements, later to be the subject of the misconduct finding against him (Facebook post):

(a) ‘I don’t care that you 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.’

(b) ‘The only reason you have not been thoroughly disowned by each and every councillor at Stonnington is that you are a political asset to some. And when it comes to political assets; respect for women means nothing.’

The next morning, on 26 July 2021, Mr Lew apologised by email to the other Councillors for the Facebook post the previous evening. Mr Lew noted that he had since deleted his comments.

In her application lodged on about 11 August 2021, Cr Morgan applied for an internal arbitration process under s 143 of the Act, alleging misconduct by Mr Lew on the basis of the remarks Mr Lew made on Facebook, referred to above. Cr Morgan alleged breaches of the standards of conduct, including cls 1(c) and (d) of sch 1 to the Regulations. As can be seen from the extract above, these deal with abusive, obscene or threatening behaviour, and treating all persons with respect.

At the end of the application, Cr Morgan attached correspondence in which Mr Corr had described the Residents Facebook Group as a ‘local politically-focussed FB group’. Mr Corr allegedly described his own posts, to which Cr Lew’s posts were responding, as being in the context of allegations of Cr Lew’s perceived conflict of interest in light of alleged relationships with certain residents’ and ratepayers’ associations.

Mr Lew contended that the allegations fell outside the scope of the arbiter’s power, as ‘none of the allegations concerns the conduct of Cr Lew when participating in, or representing community interest in, decision making of the Council or when contributing to the Council’s strategic direction’ under s 28(1) of the Act. In his Outline of Argument, Mr Lew asked the arbiter to discontinue the hearing under reg 11(3)(c)(i) of the Regulations on the basis that it was vexatious, misconceived, frivolous or lacking in substance. The arbiter did not discontinue the hearing.

The application was heard and determined on the papers. The arbiter issued a decision and statement of reasons on 14 April 2022 (arbiter’s decision).

Arbiter’s decision

The arbiter’s decision referred to the background facts which led to Cr Morgan’s application alleging misconduct by Mr Lew, including the making of the comments directed to Mr Corr in the Facebook post on 25 July 2021:[48]

6 Specifically, Cr. Morgan referred to comments made by Cr. Lew towards a resident Mr Brendan Corr. Mr. Corr and Cr. Lew appear to have different but strongly held views regarding the proposed development of the East Ward multipurpose sporting facility.

[48]Arbiter’s decision [9](a) and (b); reproduced at paragraph 56 of these reasons, above.

The arbiter’s decision then addressed Mr Lew’s contention that the arbiter had no power to hear the allegations, on grounds that included his contention that the statements ‘were not made whilst performing his role as a Councillor’.[49] The arbiter noted Mr Lew’s contention that the three aspects of the role defined in ss 28(1)(a), (b) and (c) are exhaustive, and concluded that this was a misreading of s 28(1), because s 28(1) did not include the word ‘exhaustive’ and was followed by s 28(2).[50] The arbiter’s decision continued as follows (emphasis added):

13 It is apparent that the reference to decision-making in section 28(1) must be read not in relation to specific decisions under immediate consideration but in the context of the broad range of functions performed by Councillors.
14 Councillors do not stop being Councillors when they leave a Council meeting. They are required to engage in consultation with the diversity of interests in their community to arrive at decisions appropriate to the needs of their community.
15 In this particular instance there was a difference of views between Cr. Lew and his supporters and Mr. Corr and his group regarding the siting of a multipurpose sporting facility. No final decision had been made. However intermediate decisions regarding the process of considering options had been made with further decisions to be made in due course.
16 It is therefore clear that the Arbiter is within power to consider this matter.

[49]Arbiter’s decision [10](b).

[50]Arbiter’s decision [12].

The arbiter’s decision noted the apology Mr Lew had given to the other Councillors on 26 July 2021, characterising this as evidence that he was aware he was acting as a Councillor.[51]
[51]Arbiter’s decision [17].

The arbiter’s decision then relevantly stated and determined that Mr Lew’s conduct in making the Facebook post constituted ‘misconduct’ as defined in s 3 of the Act:[52]

… I find that Cr. Lew’s statements directed at Mr Corr and some unspecified fellow Councillors did constitute misconduct insofar as it was abusive behaviour which breached Clause 1(c) of the prescribed standards (included as Clause 5.1 (c) of the Stonnington Council Code of Conduct).

[52]Arbiter’s decision [23].

Having made a finding of misconduct, the arbiter went on to address what he described as an appropriate ‘penalty’, noting matters including the following:[53]

Whilst there is no justification for Cr Lew’s abusive language, Mr Corr’s Facebook posts range from the abusive, to the offensive, to the obscene and racist. Political debate should be done civilly and respectfully. Facebook provides considerable opportunities for constructive public debate. Mr Corr has abused that opportunity and should be ashamed of himself. It is a matter for the Council as to whether they continue to engage with Mr Corr if he continues in this vein.

[53]Arbiter’s decision [24](a).

In setting out this paragraph, in fairness to Mr Corr, I note that he was not represented in the internal arbitration process and was not a party to this proceeding.

The arbiter’s decision went on to note that Mr Lew’s apology to his fellow Councillors at the time was to his credit, and then stated that ‘[a] significant part of the problem seemed to have arisen as a result of the inappropriate use of social media’ by Mr Lew.[54] The arbiter said that Mr Lew ‘did not appear to have properly understood his responsibilities as a councillor under the Act’.[55]
[54]Arbiter’s decision [24](b) and [25].
[55]Arbiter’s decision [25].

The arbiter directed that Mr Lew repeat his Councillor induction training and ‘refrain from using social media, in relation to his role as Councillor, until he had undertaken specific training in his use of such media as a Councillor, to the satisfaction of the Mayor’.[56]
[56]Arbiter’s decision [25].

The arbiter’s decision was tabled in a meeting of the Council and made publicly accessible on the internet. The outcome of the arbiter’s decision was widely published, including in social and mainstream media. Evidence was adduced on behalf of Mr Lew that he and his solicitor are concerned that Mr Lew’s professional, political and personal reputation will continue to be harmed by the decision, adversely affecting his legal and political career prospects.

Mr Lew undertook the training required by the arbiter’s decision. He resigned from his office as a Councillor on 12 December 2022.

Analysis
Nature of the judicial review proceeding and issues for determination

At the outset it is important to clarify the nature and scope of the proceeding before me.

A number of the grounds relied on by Mr Lew and arguments made by Mr Lew, through his counsel, employed language that appeared to put in issue the question of whether Mr Lew was in fact performing the role of a Councillor when making the social media post, and whether the arbiter had made a mistake of fact.

However, Mr Lew did not contend that the Court should make findings of fact for itself. Rather, it was submitted that all five grounds turned on the same legal construction argument. Although Mr Lew’s written submissions claimed that ‘the jurisdictional precondition of Cr Lew having acted in the role of a Councillor’ was absent, it was submitted that this claim should be determined as a matter of ‘logic and textual construction’, without any suggestion that the Court was required or at liberty to make its own finding on the matter.

The arbiter, through his counsel and in his written submissions, squarely addressed the nature of the judicial review by posing the question whether this proceeding involved review for ‘jurisdictional fact’, in the sense of jurisdictional preconditions of a factual nature on which the Court was free to make its own assessment and finding, in substitution for the assessment and finding made by the arbiter.[57] The arbiter submitted that this proceeding raised no such issue of jurisdictional fact.
[57]Cf Corporation of the City of Enfield v Development Assessment Corporation (2000) 199 CLR 135, [22].

I agree with the arbiter’s submission. This proceeding does not require or permit me to make findings of fact as to satisfaction of the jurisdictional preconditions that applied to the arbiter. In this sense, the judicial review does not permit me to find ‘jurisdictional facts’. The case was conducted on the basis of different, and more limited, grounds of review.

The five grounds raised in the plaintiff’s amended Originating Motion and pressed at the hearing were that the arbiter’s decision was ultra vires or unlawful because: (a) the arbiter had misconceived his function and acted in the absence of jurisdictional preconditions by misconceiving the definition of the role of a Councillor under s 28(1) of the Act; (b) the arbiter failed to take into account matters required to be taken into account as a condition of jurisdiction, being that the plaintiff was not performing the role of Councillor; (c) the arbiter took into account matters that the Act required to be ignored, being conduct other than when performing the role of a Councillor; (d) the arbiter misconstrued the Act and Regulations in finding that Mr Lew was performing the role of a Councillor, thereby misconstruing the function the arbiter was to perform and the extent of his powers; (e) the arbiter reached a legally irrational decision by reason of certain findings that were inconsistent with the correct interpretation of the role of a Councillor. The findings pleaded in this regard were those at [12], [13], [23], and [25] of the arbiter’s decision.

The plaintiff pressed only one item of his pleaded claim for relief at hearing, namely, a declaration that the arbiter’s decision is ultra vires or unlawful, and of no effect.

All five grounds of judicial review pressed by Mr Lew depend on the correct statutory interpretation of the phrase ‘in performing the role of a Councillor’, as it appears in the standards of conduct.[58]
[58]The phrase appears in each of cls 1–4 of the 2020 Regulation, sch 1. Specifically, it is the use of that phrase in cl 1 of sch 1 as incorporated in cl 5 of the City of Stonnington’s Code of Councillor Conduct that matters here.

General principles

In order to interpret the key statutory phrases raised by this case, it is necessary to keep in mind the principles of statutory interpretation.

The process must begin with the text used.[59] So must it end.[60] The text must be interpreted in its context, which includes the purpose the legislature intended to achieve, as discerned from the legislation itself, and relevant extrinsic material.[61] Where the words of a provision are clear and unambiguous, and can be intelligibly applied to the subject matter, the provision must be given its ordinary and grammatical meaning — in such cases, Parliament’s intention will have been be expressed ‘with unambiguous clarity in the language used’.[62] In order to discern legislative intention it may also be instructive to have regard to the legislative history of the provisions in question and their antecedents.[63] It may also be necessary to consider the legislation as a whole, because of the assumption that the legislature intended any interrelated parts and provisions to operate coherently to give effect to ‘harmonious goals’.[64] All these principles have a role to play in this case.
[59]R v A2 (2019) 269 CLR 507, [32]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, [47].
[60]Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, [39] (Consolidated Media Holdings); Thiess v Collector of Customs (2014) 250 CLR 664, [22]; Treasurer of Victoria v Tabcorp Holdings Ltd [2014] VSCA 143, [99]–[102] (Tabcorp).
[61]Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 (Project Blue Sky), [69]; Interpretation of Legislation Act 1984 s 35(a); CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384, [88] (CIC); Consolidated Media Holdings, [39]. In CIC, the Court noted the well-settled principle that at common law, the court may have regard to reports of law reform bodies to ascertain the mischiefs that a statute intends to cure. Furthermore, the Court highlights than under a modern approach to statutory interpretation, the context should be considered at first instance, rather than just at a later stage when ambiguity might arise.
[62]Tabcorp [2], [6].
[63]See, eg, Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, [39]; Tabcorp [2].
[64]Project Blue Sky [69]–[70].

The statutory construction issues
Overview of parties’ competing constructions of ‘role of a Councillor’

Mr Lew submitted that the prescribed standards of conduct apply only to a Councillor in performing the role of a Councillor — not simply because a person holds the office of Councillor. The arbiter agreed. He submitted that behaviour of a person in their ‘capacity’ as a Councillor is required.

It is undoubtedly correct that something more is required than merely holding office as a Councillor, and that the behaviour must have occurred in performing the role of a Councillor. The issue is whether that role is broad enough to support the arbiter’s decision, or too narrow for the decision to have been legally open to him.

Mr Lew contended that the phrase ‘in performing the role of a Councillor’ in the standards of conduct must be interpreted consistently with the statutory description of that role set out in ss 28(1)(a), (b) and (c). Subject to contrary intention, where regulations use an expression, the expression has the meaning as it has in the empowering Act.[65]
[65]Interpretation of Legislation Act 1984 s 23.

Mr Lew argued for a narrow construction of ‘the role of a Councillor’ as provided in s 28, and thus of ‘misconduct’. He submitted that the role of a Councillor is ‘deliberately narrow’ and prescribed ‘clearly and exhaustively’ in s 28(1) of the Act.

Section 28 is of central importance to the case and is worth setting out in full:

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.

Mr Lew relied on the 2015 Discussion Paper preceding the introduction of s 65 of the 1989 Act as evidence of legislative intention to clarify and confine the role of Councillors, pointing to the remarks in chapter 8 of the discussion paper about the exacerbation of issues driven by uncertainty as to the scope of the role leading to increased numbers of applications to Councillor Conduct Panels. He argued that ‘the role of a Councillor was deliberately sought to be confined in this iteration of the Act’. This had the result that the scope of prescribed standards of Councillor conduct, governing the meaning of ‘misconduct’ under the Act and the internal arbitration process, was similarly confined. Putting s 28(1)(c) aside on the facts, misconduct could relevantly only occur in the course of formal decision making processes. Aspects of the standards of conduct relating to respectful treatment of members of the public had work to do because meetings at which decisions would be debated and made could be open to the public and in any event, references might be made in the course of debate to members of the public.

The arbiter advocated a broader interpretation of the role of a Councillor under the Act. He described s 28 as ‘inconclusive or indicative or illustrative, but not exhaustive, of the functions that the Councillor might perform’. He submitted that the fact that the arbitration process is an internal one does not mean that the impugned conduct must occur ‘within the four walls of council’, but rather that it is ‘more an indication of the capacity in which that behaviour is engaged in’.

Both parties’ submissions addressed textual aspects of the statutory interpretation task. The arbiter’s submissions emphasised contextual matters in support of a broader interpretation of the expression ‘in performing the role of a Councillor’ and Mr Lew’s submissions emphasised the principle of beginning and ending with the text, in support of a narrower interpretation.

Is s 28(1) exhaustive?

Mr Lew submitted that the three activities described in ss 28(1)(a), (b) and (c) define the ‘role of every Councillor’ exhaustively. Mr Lew contended that s 28(2) in no way extends the scope of sub-s (1) and merely prescribes the type of behaviour that is required when performing the role of a Councillor. The 2015 Discussion Paper identified the lack of a description of the ‘role of a Councillor’, as an individual, as a significant shortcoming of that Act. This suggested that the legislature made a deliberate choice to define the role exhaustively. Mr Lew contended that s 28(1) is ‘clear and unambiguous, and can be intelligibly applied to the subject matter … and permits of no other interpretation’.[66]
[66]Citing Tabcorp [2], [6].

The arbiter did not dispute the importance of s 28, but did not agree with the submission that the matters in ss 28(1)(a), (b) and (c) should be treated as an exhaustive description of the role of a Councillor. Ordinarily, the use of the word ‘is’ would carry the literal meaning that what follows is exhaustive, but this is not necessarily always the meaning that is conveyed.

The arbiter stressed the need to consider the statutory text in its context and to give consideration to the principle that the Court must strive to give effect to every word of a provision and every provision of an Act.[67] He submitted that s 28(1) does not in terms provide that it is exhaustive and that both parties need to fall back on surrounding context in support of their arguments.
[67]Citing Herzfeld and Prince, Interpretation (2nd ed, 2020), [5.160]; Project Blue Sky [71]; Minogue v Victoria (2018) 264 CLR 252, [30].

I agree with the arbiter’s conclusion that the terms of s 28(1) do not make it clear that s 28(1) is intended to be exhaustive, for the reasons he advanced and for an additional reason. The key word used in s 28(1), ‘role’, is capable of conveying a protean meaning. The use of the word ‘every’ in the phrase ‘it is the role of every Councillor’ is significant. Subject to consideration of contextual matters, a plain and literal reading of the phrase including this word might suggest that the three activities set out in s 28(1) are only the irreducible minimum role that each and every Councillor is required to perform. That would open the possibility that the suite of additional functions to be performed by Councillors, and the scope of their role, might vary between Councils and even between Councillors of particular Councils, depending on circumstances such as policies adopted by Councils, specific authorisations granted by Councils to particular Councillors, and the like.

Counsel for the arbiter submitted that there were at least two other aspects of the Act that proved that Councillors may have functions that fall outside s 28(1). He drew attention to the potential for Councillors to be members of a Council’s Audit and Risk Committee under s 53 of the Act, and to Councillors occupying a position of representation of their Council, as contemplated by ss 147(2)(c) and 129(d).

I accept that these provisions indicate that Councillors can have functions under the Act that fall outside the activities described in ss 28(1)(a), (b) and (c) of the Act. It follows that s 28(1) is not exhaustive of all the permissible functions that can be regarded as part of the roles of particular Councillors.

Counsel for the arbiter submitted that s 28(2)(b), in providing that a Councillor must support the role of the Council, envisaged activities beyond those set out in ss 28(1)(a), (b) and (c).

The introductory phrase in s 28(2), ‘In performing the role of a Councillor’, indicates that the actions described in each of subparagraphs (a)–(f) are not in themselves additions to the role of the Councillor, but rather are ways in which that role is to be performed. However, by shedding light on the kinds of actions involved in ‘performing’ the role, ss 28(2)(a)–(f) can support the drawing of implications about the legislature’s intentions as to the permissible scope of the role. Depending on other contextual considerations addressed below, s 28(2)(a) tends to imply that the legislature considered that community consultation could form part of the role of a Councillor, as does s 28(2)(b).

The arbiter submitted that the negative stipulation in s 28(3) would be entirely redundant if s 28(1) were exhaustive of the role of a Councillor. He pointed out that the responsibilities and functions of the Chief Executive Officer are set out in s 46 of the Act and are not ‘concerned with’ the matters in s 28(1). I agree. The responsibilities and functions set out in s 46 are mutually exclusive of the activities described in ss 28(1)(a), (b) and (c). I accept that the presence of s 28(3) is a factor weighing against an exhaustive interpretation of s 28(1). Counsel for Mr Lew made submissions in reply that s 28(3) should be regarded as a provision included for abundant clarity and not as one that was intended to have substantial additional operation. Such provisions are not unknown. However, I do not think that s 28(3) was merely intended to ensure clarity in the operation of the preceding sections. It has independent work to do. Taking into account the cumulative weight of the various other contextual indicators against an exhaustive interpretation of s 28(1) addressed in these reasons, I do not accept Mr Lew’s reply submission.

Counsel for the arbiter submitted that the Act provides for a significant amount of training for Councillors, and that this suggests their role is broader than the confines of s 28(1).[68] I do not accept that the provisions contemplating training add materially to the competing arguments.
[68]See Councillor Induction Training under s 32, ‘Councillor Candidate Training’ under ss 256(7) and 326(c) and remedial training under ss 147(2)(e) and 167(6)(b).

Like counsel for Mr Lew, counsel for the arbiter also relied on the 2015 Discussion Paper. He submitted, however, that the specific concern identified in the 2015 Discussion Paper as the reason for the enactment of what became s 65 of the 1989 Act was the demarcation between the executive functions of the CEO and Council staff on the one hand, and the functions of Councillors on the other. He submitted that s 28(3) addresses that concern. He also relied on s 124 of the Act, which makes it an offence for a Councillor to direct members of Council staff in certain circumstances. He submitted that, when these matters are taken into account, the 2015 Discussion Paper does not support the contention that s 28(1) is intended to be exhaustive. I accept this submission. The 2015 Discussion Paper is essentially a neutral factor in determining the statutory construction questions raised by the case.

Competing interpretations of the scope of ss 28(1)(a) and (b)

Mr Lew made submissions about the limited scope of the two ‘decision making’ activities described in ss 28(1)(a) and (b). While acknowledging that ‘decision making’ can have a broad meaning in some contexts, counsel for Mr Lew submitted it has ‘a very specific meaning’ in the Act. He drew my attention to pt 3 of the Act, entitled ‘Council decision making’, and in particular, s 59(1), which provides that Council decisions to do any act, matter or thing are to be made by resolution. By reference to that provision, he submitted that Council decision making is a formal process that does not extend to discussion or debate between a Councillor and members of the public outside formal Council procedures.

There is an obvious challenge in the path of this submission: pt 3 of the Act includes many provisions relating to community engagement. Part 3 div 1 is entitled ‘Community Accountability’. It requires the Council to adopt a community engagement policy to give effect to certain statutory characteristics described as ‘community engagement principles’.[69] It also requires the Council to adopt a public transparency policy to give effect to certain defined public transparency principles.[70] Section 55(2) describes certain essential features of a community engagement policy. For example, a community engagement policy must describe the type and form of community engagement proposed, having regard to the significance and complexity of the matter, and the level of resourcing required.[71] Read as a whole, pt 3 indicates that community engagement is intended to be at least an antecedent to the formal processes of decision making, if not integral to decision making.
[69]Defined in Act s 56.
[70]Act ss 57, 58.
[71]Act s 55(2)(e).

Mr Lew’s written submissions included a submission that a Councillor’s decision making role ceases when the Councillor leaves a formal meeting of the Council or its committees. The arbiter characterised this as an ‘intramural’ role, that is, one that is confined to what happens within the walls of the meeting room. During oral submissions, Mr Lew’s counsel made a somewhat different submission. Counsel submitted that decision making activities may occur outside the meeting room, for example in the course of briefings. Mr Lew returned to the position outlined in his written submissions during counsel’s reply submissions.

The arbiter submitted that the intramural construction of the role is not tenable. He pointed to various indications throughout the Act suggesting that ‘decision making’ by Councillors in the context of ss 28(1)(a)–(b) encompasses more than mere participation in meetings at which a resolution is voted on:

(a) In respect of the requirement in s 28(2)(a) to ‘consider the diversity of interests and needs of the municipal community’, counsel submitted that this implies that the Councillor will have taken steps to learn about those diverse interests and needs.

(b) Engagement with the municipal community[72] is contemplated in several provisions of the Act. One of the three objectives of the Act is to ensure that Councils are constituted as representative bodies that are ‘engaged with their communities’.[73] One of the overarching governance principles is that ‘the municipal community is to be engaged in strategic planning and strategic decision making’.[74] The Council must also adopt a community engagement policy.[75]

(c) He also relied on an asserted common law right to inspect documents.[76]

[72]See Act s 3, definition of ‘municipal community’.

[73]Act s 4(b).

[74]Act s 9(2)(d).

[75]Act s 55.

[76]Citing Schwerin v City of Sale [1997] 2 VR 219, 228.

There is much force in the submission that the decision making activities described in ss 28(1)(a) and (b) extend beyond the intramural role of participating in meetings at which decisions are made. On a proper reading of those provisions, participation in formal decision making processes may only be the final step in what constitutes the mandatory and irreducible task of ‘decision making’.

When ss 28(1)(a) and (b) are read together, they convey a strong impression that decision making may permissibly involve community engagement. Paragraph (a) refers to decision making and paragraph (b) refers to representing ‘the interests of the municipal community in that decision making’.[77] In order to represent the interests of the municipal community so as to participate in the decision making of the Council in the manner intended by s 28(1)(b), it must be necessary for an individual Councillor to understand those interests. One way to achieve that would be direct engagement with the municipal community. This conclusion is broadly consistent with aspects of the Act indicating that Councils are required to be engaged with the community that elects them.
[77]Emphasis added.

However, it is not necessary or appropriate for me to reach a conclusion on whether community engagement is part of the mandatory and irreducible role set out in s 28(1). In the circumstances of this case, even if the manner and extent of involvement by Councillors in community engagement may be decided by each Council, the outcome is not affected by the resolution of this question. On one view, community engagement relevant to decision making is included in the activities described in s 28(1). In the alternative, if or to the extent that community engagement does not fall within the irreducible minimum actions in s 28(1), there is no evidence that it was prohibited by the Council in this case. It is at least clearly to be implied that engagement with the community is a permissible activity that may be part of the Councillors’ role, depending on the approach of the Council concerned. Section 7.2 of the Stonnington Code indicated that the approach of the Council to this issue was to encourage community engagement by its Councillors.

The parties did not address me in detail on the question of a Council’s ability to regulate its Councillors’ community engagement via instruments such as the community engagement policy or the Councillor Code of Conduct. On the view I take of s 28(1), explained above, it is unnecessary and inappropriate for me to reach a conclusion on which of the two alternative approaches outlined in the preceding paragraph is the correct one. In Magee v Boroondara City Council,[78] Emerton J (as her Honour then was) considered the scope and application of the rule against apprehended bias in relation to a Councillor. The case arose before the addition of s 65 to the 1989 Act; however, her Honour’s description of the role of a Councillor may be significant if it ever becomes necessary to resolve the question of whether and in what circumstances community engagement is part of the irreducible minimum of the role. Emerton J noted that the role is of a hybrid nature, involving both membership of the community a Councillor represents and decision making power. ‘Councillors can and do inform themselves about community concerns and issues … by speaking to residents and people with an interest’ in ‘issues that may ultimately become the subject of formal decisions by Council’.[79] Ierodiaconou AsJ revisited this topic more recently in Owners Corporation Plan No RP 015268 v Yarra City Council.[80] It is arguable that community engagement on forthcoming decisions is an irreducible part of the role. However, resolution of that question should await a case in which the issue is squarely raised.
[78][2011] VSC 78 (Magee).
[79]Magee, [65].
[80][2023] VSC 318.

I am conscious of the need to distinguish between individual Councillors and the Council to which they belong. Individual Councillors are not synonymous with the Councils to which they are elected. The Council is a body corporate constituted by the Councillors as elected from time to time.[81]
[81]Act s 12.

Councils are recognised in the Constitution Act 1975 s 74A(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.

The Act itself is intended to give effect to s 74A(1) of the Constitution Act.[82] In doing so, its objective includes ensuring that local government continues to be constituted as a democratically elected tier of Government in Victoria and that Councils are engaged with their communities.[83]
[82]Act s 1.
[83]See ss 4(a)–(b).

The ‘role’ of a Council is provided for in s 8(1) of the Act. It is to provide good governance in its municipal district for the benefit and wellbeing of the municipal community. A Council provides good governance if it does two things: first, the Council performs its role in accordance with overarching governance principles set out in s 9(1) and other principles referred to in s 9(3); and second, ‘the Councillors of the Council perform their roles in accordance with section 28’.[84]
[84]Act ss 8(2)(a)–(b).

Interpreted in this context, 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 s 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.

Further or alternative argument supporting broad interpretation of ss 28(1)(a) and (b)

In the event that the Court were otherwise minded to conclude that s 28(1) was exhaustive and should be given a narrow interpretation, the arbiter made a further or alternative argument that relied upon the content of the standards of conduct. The arbiter submitted that the content of the standards of conduct were clearly broad enough to regulate the behaviour of Councillors when engaging with the community, and that they could be used as a permissible aid to interpretation of s 28 of the Act. In this way, the arbiter sought to enlist the standards of conduct in support of a broad interpretation of s 28 of the Act. Any such argument would generally fall foul of the principle that a stream cannot rise above its source. It would ordinarily be impossible to use a subordinate instrument to interpret the legislation under which it was made. However, the arbiter invited the Court to adopt this exceptional course on the basis that pt 6 of the Act and the Regulations commenced on the same day and that they form part of an interdependent statutory scheme.[85]
[85]Citing Pipe Networks Pty Ltd v Commonwealth Superannuation Corporation (2013) 212 FCR 542, citing Elazac Pty Ltd v Commissioner of Patents (1994) 53 FCR 86, 90. See also O’Connell v Nixon (2007) 16 VR 440, [28] (O’Connell v Nixon).

It is strictly not necessary for me to express a view about this aspect of the arbiter’s submissions. That is because I have concluded that s 28(1) is not exhaustive of the permissible role of all Councillors and that, in any event, the key aspects of every Councillor’s decision making role could permissibly involve community engagement. Arguably, the extent and manner of such community engagement is a matter that might vary between Councils and even between Councillors, depending on such matters as policies adopted by the Council, delegations and other forms of authorisation.

I did not rely on the content of the standards of conduct in reaching the above conclusion. I do not accept that the Regulations can be used to interpret any part of the Act. On my reading of the relevant authorities, it is insufficient that the delegated legislation in question commenced at the same time as the relevant legislation. It would be necessary that the delegated legislation and the Act were ‘contemporaneously prepared’.[86] There was no evidence placed before the Court as to the timing of preparation of the Regulations. The Act received the Royal Assent several months before pt 6 commenced in operation. It is possible that the Regulations were prepared after the Act had already received the Royal Assent. In these circumstances, I cannot be satisfied that the Act and the Regulations were ‘contemporaneously prepared’. In the circumstances, it would not be possible to impute to the legislature any knowledge of the content of the Regulations.
[86]O’Connell v Nixon, 447.

The arbiter also submitted that certain training material and guidance material prepared before the enactment of the Act could be used to inform the construction task. I did not rely on these materials either.

Is the phrase, ‘role of a Councillor’ in the standards of conduct defined by s 28(1) of the Act?

Mr Lew submitted that the interpretation of ‘the role of every Councillor’ drawn from s 28(1) of the Act should apply to the phrase ‘the role of a Councillor’ as it appeared in the standards of conduct. As already noted, there is a statutory presumption that, subject to contrary intention, expressions in a subordinate instrument have the meanings used in the empowering Act.[87]
[87]Interpretation of Legislation Act 1984 s 23.

The arbiter submitted that, if the Court were to adopt the narrow construction of s 28(1) urged by Mr Lew, the usual statutory presumption would not apply in this case.[88] He relied on the principle of giving effect to every word of the standards of conduct and to aspects of the standards of conduct which contemplate a far broader role than would be apparent on a narrow and exhaustive construction of s 28(1) of the Act. He relied on the same features of the prescribed standards enlisted in support of his submission outlined at paragraph 114 above.
[88]Counsel for the arbiter submitted that the Regulations evince a ‘contrary intention’ for the purposes of s 23 of the Interpretation of Legislation Act 1984.

As indicated above, I accept the substance of the submissions of the arbiter as to s 28(1) of the Act. Section 28(1) defines the role in a non-exhaustive manner. That role can permissibly include other functions, including community engagement, subject to the policies and decisions of the particular Council. For this reason, there is no inconsistency with the statutory presumption in treating the phrase, ‘the role of a Councillor’, as it appears in the standards of conduct, as having the same meaning as it does in the Act.

Coherent operation to give effect to harmonious goals

As already mentioned, internal arbitration of applications alleging misconduct is only one of the three available avenues that the Act establishes to address alleged misbehaviour by Councillors. Each of those avenues must be intended to operate alongside the others in a coherent manner, giving effect to harmonious goals.

Mr Lew relied on this principle in support of a narrow construction of ‘the role of a Councillor’ and the scope of ‘misconduct’. He contended that an internal arbitration process, initiated by Councillors against other Councillors, was best suited for, and intended for, a relatively narrow class of behaviours occurring in the course of formal decision making processes, and not in the course of community engagement. He pointed to the risk of proliferation of politically motivated applications for findings of misconduct against opponents in this regard. The 2015 Discussion Paper evinced an intention to reduce the number of applications.

There is much force in this argument, at least from a policy perspective. It does indeed seem counterintuitive that behaviour in the course of a Councillor’s use of a private social media account is to be addressed by an internal arbitration process at the instigation of another Councillor. However, the Act contains a filter which would tend to reduce the risk of politically motivated applications, in the form of the Principal Councillor Conduct Registrar’s examination of applications pursuant to s 144 of the Act, noted above. This goes some way towards depriving the argument of its force.

The tripartite scheme for regulation of Councillor behaviour operates harmoniously irrespective of whether a broad or narrow interpretation is given to ‘in performing the role of a Councillor’ in the standards of conduct. The effect of adopting a broad interpretation simply supports a broader scope of operation for the first avenue of the scheme than would otherwise have been the case. It does not introduce any conflicts or unintended consequences in the interfaces between the three avenues or the operation of the other two avenues.

Ultimately, I have concluded that the contextual indications in support of a broad construction of the role of a Councillor outweigh Mr Lew’s argument.

Related provisions

Although s 28(1)(c) of the Act was not directly relied upon by either party, it should be considered. As noted above, s 28(1)(c) described that aspect of the role of a Councillor involving contributing ‘to the strategic direction of the Council through the development of key strategic documents’.

Part 4 of the Act is entitled ‘Planning and financial management’. Division 1 is entitled ‘Strategic planning’. This division requires Councils to maintain a number of key strategic documents, each of which must be developed with the municipal community in accordance with the deliberative engagement practices included in its community engagement policy. They are the ‘Community Vision’, the ‘Council Plan’, the ‘Financial Plan’, the ‘Asset Plan’, and the ‘Revenue and Rating Plan’. Again, it 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, as outlined above.

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 outlined earlier in my reasons.

As mentioned earlier, there are differences between s 28(2) of the Act and s 65(2) of the 1989 Act. The key difference is that s 65(2)(e) of the 1989 Act was omitted from the s 28(2) of the Act. Section 65(2)(e) described the requirement that a Councillor must ‘facilitate effective communication between the Council and the community’. Does its omission amount to a clear statement of legislative intention about whether community engagement is an element of the role of a Councillor? I do not think so. It is possible that the omission arose for some other reason. I am not aware of any extrinsic material explaining the reason for the omission.

Conclusion on the construction of ‘the role of a Councillor’

For the reasons set out in the preceding analysis, I have concluded that the correct interpretation of ‘in performing the role of a Councillor’ appearing in cl 1 of the standards of conduct is sufficiently broad to encompass community engagement, including via social media.

Consistently with s 23 of the Interpretation of Legislation Act 1984, the meaning of ‘the role of a Councillor’ in the standards of conduct is the same as the meaning of ‘the role of a Councillor’ in the Act. However, that role is not exhaustively defined by only the three activities set out in ss 28(1)(a), (b) and (c) of the Act. Those activities are the mandatory and irreducible suite of activities that every Councillor must perform and must be permitted to perform. Outside those activities, there is considerable scope for Councillors to be empowered to perform other functions. There are also limits on the functions Councillors are permitted to perform. For example, they must not assume any of the functions of the Chief Executive Officer.

The question of 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.

In addition, the meanings of each of the activities described in ss 28(1)(a), (b) and (c) themselves allow some scope to consider conduct outside the meeting room. For example, there are some aspects of decision making under ss 28(1)(a) and (b) that could not be precluded by Council policies from being performed by every Councillor. For example, it might be impermissible to prevent Councillors from having access to information required for decision making. It is an open question whether and to what extent community engagement is a matter that may be regulated by a particular Council, for example by the terms of its community engagement policy and Councillor Code of Conduct. For reasons I have given above, it is unnecessary and inappropriate for me to decide this question in this case.

The conclusion I have reached is not inconsistent with the approach adopted by Judge Harbison VP in Chapman v Greater Bendigo City Council.[89] The facts of that case arose in February 2015, before the introduction of s 65 of the 1989 Act. Nevertheless, the case is of some relevance, including as an illustration of the nature of the factual inquiry that might be involved in determining whether behaviour falls within or outside a Councillor’s role. A Councillor had made a highly offensive tweet on her Twitter account regarding an issue for decision before her Council, and an application was made to a Councillor Conduct Panel, which made a finding of misconduct against the Councillor. On appeal to VCAT, her Honour considered and rejected an argument that the tweet had not been made ‘in performing a Councillor’s role’, as that expression was used in ss 76B and 76BA of the 1989 Act. Her Honour considered the factual circumstances surrounding the tweet in detail, concluding with a finding of fact that the tweet was made in performing the Councillor’s role, rather than in her private capacity.
[89][2017] VCAT 417, [110]–[148], especially [112].

Significance of Stonnington Code section 7.2 to the outcome of this case

Importantly for the outcome of this case, there was evidence before the arbiter that the Council expressly encouraged Councillors to engage with the municipal community, in the form of section 7.2 of the Stonnington Code.

It would be open to a Council to regulate the extent and manner of community engagement its Councillors are permitted to conduct. There might be good reasons to do so quite strictly, to avoid reputational and legal risks. However, there was no suggestion that a constraint of that kind was in evidence before the arbiter here. The Council’s community engagement policy was not in evidence before me, and there is no indication that it was before the arbiter. It is unclear what, if any, constraints it may have placed on Councillors’ engagement with the community. The most significant piece of evidence on the issue was section 7.2 of the Stonnington Code. The arbiter made no reference to section 7.2, but I am satisfied that the Stonnington Code was before him, as he referred to it in his decision.[90]
[90]Arbiter’s decision [5], [21], [23].

By reason of section 7.2 of the Stonnington Code, the evidence before the arbiter in this case provided a basis on which it was open to the arbiter to find that community engagement on matters for decision was, in fact, part of Mr Lew’s role as a Councillor.

Conclusions on the grounds of judicial review

I now turn to each of the pleaded grounds of review, and set out my conclusions on each of them. Each of my conclusions flows from my conclusions on the proper construction of ‘the role of a Councillor’ in cl 1 of the standards of conduct, together with my conclusion about the significance of section 7.2 of the Stonnington Code.

First, it was claimed that the arbiter had misconceived his function and acted in the absence of jurisdictional preconditions by misconceiving the definition of the role of a Councillor under s 28(1) of the Act. The key passage of the arbiter’s decision that discloses his understanding of the legal test to be applied is the passage at [13]–[16]. The courts are required to read and interpret statements of reasons of administrative decision makers fairly and without an eye keenly attuned to the detection of error.[91] This passage of the decision makes it clear that the arbiter considered that Mr Lew’s decision making role as a Councillor, as described in ss 28(1)(a) and (b), encompassed antecedent community engagement or consultation relating to decision making generally, or at least relating to issues for potential decision making by the Council.
[91]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271–272; Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497, [38].

On the construction of s 28(1) that I consider to be correct, that understanding of the law was substantially correct.

The arbiter did not address whether community engagement is a mandatory and immutable element of the role of the Councillor, or one that a Council can regulate. His language at [14] suggests that he considered it an immutable element: ‘[Councillors] are required to engage in consultation with the diversity of interests in their community to arrive at decisions appropriate to the needs of their community’. On the proper construction of s 28 and ‘the role of a Councillor’ as that phrase appears in the standards of conduct, it is arguable that community engagement on matters for decision by a Council is merely a permissible and not an irreducible function of a Councillor, depending on the particular Council’s approach. However, for reasons explained above, it is unnecessary to reach a view on this question.

For these reasons, the first ground does not establish invalidity of the arbiter’s decision.

Second, it was claimed that the arbiter failed to take into account matters required to be taken into account as a condition of jurisdiction, being that the plaintiff was not performing the role of a Councillor. The question of whether Mr Lew made the Facebook post in performing the role of a Councillor was one for the arbiter to decide on the material before him, provided his understanding of the law was free from material error. For the reasons already given, I am satisfied that the arbiter’s understanding of the law was free from any error affecting the outcome here. I am satisfied that the second ground is not made out.

Third, it was claimed that the arbiter took into account matters that the Act required to be ignored, being conduct other than when performing the role of a Councillor. For substantially the same reasons as outlined in relation to the second ground, I am satisfied that the third ground is not made out either.

Fourth, it was claimed that the arbiter misconstrued the Act and Regulations in finding that Mr Lew was performing the role of a Councillor, thereby misconstruing the function the arbiter was to perform and the extent of his powers. For the reasons I have given in response to the first ground, I am satisfied that this ground is not made out.

Fifth and finally, it was claimed that the arbiter reached a ‘legally irrational’ decision by reason of certain findings that were inconsistent with the correct interpretation of the role of a Councillor. The findings pleaded in this regard were those at [12], [13], [23], and [25] of the arbiter’s decision. Mr Lew relied on Associated Provincial Picture Houses Ltd v Wednesbury.[92]
[92][1948] 1 KB 223, 229–230.

In his written submissions and during the hearing, Mr Lew also submitted that the arbiter’s decision at [17] supported this ground. During his counsel’s oral submissions, the arbiter objected that reliance on the arbiter’s decision at [17] had not been pleaded. Mr Lew made no reply submission on this point. I agree with the arbiter’s submission that Mr Lew’s reliance on the arbiter’s decision at [17] was not pleaded. However, given the Hardiman position adopted by the arbiter, I am unpersuaded that there is any prejudice to the arbiter and I propose to consider the merits of the argument as presented at the hearing.

The courts recognise that the conferral by statute of discretionary power is subject to a standard of legal reasonableness.[93] In my view, the arbiter’s finding that Mr Lew was acting in the performance of his role as Councillor was not an exercise of a discretionary power. However, the standard of legal reasonableness has also been recognised as a jurisdictional constraint on non-discretionary administrative decision making.[94]
[93]Minister for Immigration and Citizenship v Li (2013) 87 ALJR 618, [63]–[76], especially [66] (Hayne, Kiefel and Bell JJ): ‘there is an area within which a decision-maker has genuinely free discretion. That area resides within the bounds of legal reasonableness.’; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541.
[94]Re Minister for Immigration and Multicultural affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165, 1175 [64]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [132].

Mr Lew contended that the arbiter made a decision no reasonable decision maker could reasonably make pursuant to a proper application of the Act and on the evidence before him, in treating s 28(1) as non-exhaustive of the role of a Councillor at [12] and [13] of his decision, and in concluding at [23] that Mr Lew was performing the role of a Councillor in making the Facebook post. Mr Lew submitted that if the arbiter had ‘conceived correctly of the role of a Councillor, he would not and could not have concluded that Cr Lew breached the prescribed standards’.

For the reasons I have already given, I consider that ss 28(1)(a), (b) and (c) set out the irreducible minimum suite of actions required of every Councillor, and that s 28(1) is not exhaustive of the role of a Councillor, because additional functions and duties may be conferred on the Councillor. On one view, community engagement relevant to decision making is included in the activities described in s 28(1). In the alternative, if or to the extent that community engagement does not fall within the irreducible minimum actions in s 28(1), there is no evidence that it was prohibited by the Council in this case, and section 7.2 of the Stonnington Code positively encouraged it. The findings or conclusions at [12], [13] and [23] of the arbiter’s decision were within the range of reasonable and rational decision making outcomes that were open to the arbiter on the evidence before him.

Mr Lew pleaded that the arbiter’s finding at [23] that the Facebook post constituted a breach of the standards of conduct was legally unreasonable. The submissions on behalf of Mr Lew clarified this contention. It was not put as a contention that it was unreasonable for the arbiter to conclude that Mr Lew’s Facebook post was ‘abusive behaviour’; rather, it was put as a contention that Mr Lew was not performing the role of a Councillor when he made the post, on the correct construction of that role. For the reasons already given in relation to the first ground, including the reasons I have given for attaching significance to section 7.2 of the Stonnington Code, I disagree with Mr Lew’s contention. I am satisfied that the arbiter’s conclusion was reasonably open to him on the evidence before him and on a correct understanding of the applicable law.

Mr Lew pleaded that the arbiter’s finding at [25], to the effect that Mr Lew did not seem to have ‘properly understood his responsibilities’ as a Councillor under the Act, was legally unreasonable. Again, this ground turned on the key issue of statutory interpretation — the construction of ‘the role of a Councillor’ — already addressed. For the reasons given in response to the first ground, I am satisfied that this finding does not infringe the required standard of legal reasonableness.

As noted above, through his counsel’s oral submissions, Mr Lew contended that the arbiter’s decision at [17] was also legally unreasonable. In this paragraph, the arbiter referred to Mr Lew’s apology to his fellow Councillors the day after making the Facebook post, and characterised it as supporting his conclusion that Mr Lew was acting within his role as a Councillor at the time.

I agree with the gist of this submission, although not that it leads to invalidity of the arbiter’s decision. Mr Lew’s apology could not be treated as evidence of an awareness that he was performing the role of a Councillor at the time of the comments. However, in my view, this aspect of the arbiter’s decision was ultimately immaterial to the outcome. In order for an error to be material, there must be a realistic possibility that the decision could have been different, but for the error.[95]
[95]Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, [48]; MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506, [2].

The offending sentence of the arbiter’s decision appeared within a paragraph that constituted the sole text under the heading ‘Cr Lew’s statements not made in his role as a Councillor’. That heading followed immediately after the passage of reasoning extracted in paragraph 63, above. That passage concluded with the arbiter saying ‘it is therefore clear that the arbiter is within power to consider this matter’. Read in its context, the impugned sentence was not integral to the conclusion that Mr Lew was acting in performance of his role as a Councillor:

Paragraph 13 of Cr Lew’s submission contends that none of the allegations concerns the conduct of Cr Lew when undertaking the activities described in section 28(1). Given the discussion in the previous paragraph this argument has no basis. Indeed Cr Lew was aware that he was acting as a Councillor by virtue of his written apology to other Councillors on 26 July 2021.

On my reading of the above paragraph and the passage of the arbiter’s decision that precedes it, the arbiter’s material conclusion was complete at the point where he stated, ‘Given the discussion in the previous paragraph this argument has no basis’. That is, the arbiter rejected Mr Lew’s jurisdictional objection on the basis of the discussion in the passage at [11] to [16] of his decision. The last sentence of [17], commencing ‘indeed’, was surplus to that reasoning. The word ‘indeed’ makes that clear. Even without that sentence, the arbiter’s conclusion would have been the same.

For these reasons, I am satisfied that the fifth and final ground also fails.

Before concluding, it is necessary to address certain matters that arose during the hearing.

Confidentiality issues and admission of evidence
Admissibility issues

At the commencement of the hearing, I raised a concern that some of the evidence relied upon by the plaintiff may not be admissible. In a judicial review proceeding, generally speaking, the evidence of relevance is confined to the material that was before the administrative decision maker and the record of the decision, subject to certain recognised exceptions.[96] Here, much of the evidence filed on behalf of the plaintiff either post-dated the decision or related to other matters such as social media posts purportedly made by Mr Corr and others on other occasions, separate disputes and newspaper articles.
[96]McKenzie v Head, Transport of Victoria [2021] VSCA 100, [153].

Mr Lew submitted that this material was relied upon by him on the question of utility of the declaratory relief he seeks, on the basis that it tends to establish that the arbiter’s decision has a continuing impact on his reputation. The arbiter did not concede or dispute the utility of declaratory relief. The arbiter, referring to his ‘attenuated Hardiman position’ in the proceeding, submitted that it falls to the plaintiff to persuade the Court of the utility of declaratory relief.

At the hearing, I treated all the material before the Court as provisionally admitted into evidence and made directions for post-hearing written submissions on admissibility.

Consistently with his position at the hearing, the arbiter’s post-hearing note did not adopt an active position on the admissibility issues.

In his post-hearing note, Mr Lew informed the Court that he was not pressing the admission of 11 paragraphs of the affidavits and five of the exhibits. With these excisions, I have admitted all the evidence relied upon by the parties into evidence, treating the court book as an omnibus exhibit. I did so on the basis that evidence of matters postdating the decision were relevant to the utility and availability of declaratory relief. That evidence demonstrated that there would have been foreseeable circumstances for Mr Lew justifying the grant of a declaration, should I have upheld his grounds of review.[97]
[97]Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 581–582.

Confidentiality issues

During the hearing I also raised a concern that, in the interests of the administration of justice, it may be necessary to ensure that some of the evidence not be published in connection with the proceeding. I made an order early in the hearing that the identities and purported identities of living individuals not already referred to in the arbiter’s decision and statement of reasons not be disclosed during the hearing, and I made an interim order that the court file be kept confidential and not be made available for inspection.[98]
[98]See Rules r 28.05(4).

Mr Lew submitted that there is no constraint on the Court knowing what was put before the arbiter. I agreed and indicated that the parties could take me to any of the adduced documents they wished, provided they exercised caution to avoid public disclosure of material identifying individuals. There was no constraint on my consideration of any of the evidence relied upon by the parties. However, whether and to what extent that evidence should be published is a separate matter.

The making of an order concealing the identity of a person by restricting the way the person is referred to in open court, or prohibiting or restricting access to a court file, is not limited or affected by the Open Courts Act 2013 (Open Courts Act).[99] Nevertheless, it is appropriate to consider whether an order restricting access to any of the evidence would be necessary for the proper administration of justice.[100]
[99]Open Courts Act ss 7(d)(i), (iii).
[100]Hogan v Hinch (2011) 243 CLR 506, 531; Lighthouse Corporation Limited v Republica Democratica de Timor Leste(No 4) [2023] VSC 363, [111].

There are two key matters that lead me to conclude that such an order would be necessary to the proper administration of justice.

First, there is the legislative statement made in s 145 of the Act that information provided to an arbiter for the purpose of an internal arbitration process, other than the findings and the reasons, ‘is confidential information’.

To the extent that individuals are not identified already by the arbiter’s decision and statement of reasons tabled pursuant to s 147 of the Act, the material provided to the arbiter for the purposes of the arbitration that could reveal them, and what was said about them, should remain confidential. This outcome would be consistent with s 145. It would be inconsistent with the proper administration of justice if proceedings for judicial review of decisions resulting from the internal arbitration process were to lead to publications that subvert the legislative intention evident in s 145 that (save to the extent revealed in the arbiter’s findings and reasons) information provided for the purposes of the internal arbitration process is to remain confidential.

Second, there are third-party reputational interests involved. Several of the social media posts and related correspondence in evidence identify or purport to identify individuals who appear to be residents of Stonnington, or who are in any event connected with groups engaged in issues that affect Stonnington. The social media posts disparage and ridicule these individuals. The publication of this material in connection with reporting of this proceeding could impact adversely on their reputations in a way that provides them with no recourse.

The authorities suggest it is necessary to be satisfied that publication of the relevant material would adversely affect the individuals concerned.[101] I am satisfied of this, in light of the nature of the material and the fact that some of these individuals have previously expressed their distress about it to the Council.
[101]In the matter of Japara Holdings Pty Ltd; Japara Holdings Pty Ltd v Rouse [2010] VSC 291, [10].

Further, it has proved unnecessary for the details of any of this material to be revealed publicly in order to explain the conclusions I have reached in the proceeding.

Pursuant to r 28.05(4) of the Rules, I will order that the documents on the court file that are specified in Annexure A to these reasons be kept confidential and not be made available for inspection.

Open Courts Act issues

During the hearing, counsel for Mr Lew read out parts of a statement made by Mr Lew to police in relation to an application for an intervention order. This statement formed part of the material Mr Lew provided to the arbiter for the purposes of the internal arbitration process, and was reproduced in exhibit ‘SA-2’.

After hearing submissions from the parties and having my attention drawn to s 145 of the Act, on my own motion I made an interim order under s 20 of the Open Courts Act and the inherent jurisdiction of the court, preventing publication of this part of counsel’s submissions. I indicated that I would shortly inform the parties whether I would proceed to consideration of a substantive application for a proceeding suppression order.

Section 20(1) provides that if an application is made to a court for a proceeding suppression order, the court may make an interim order in respect of that application. Where an interim order has been made, s 20(4) requires the court to determine the substantive application with urgency. Here there was and is no substantive application. Section 19(1)(a) provides that a court may make a proceeding suppression order on its own motion, but it is unclear whether s 20 governs the making of an interim order on a court’s own motion. If it does not, then the inherent jurisdiction of the court does so.

Either way, the Court was required to proceed with urgency in deciding whether the interim order I made on 18 July 2023 should be made more permanent, in the form of a substantive proceeding suppression order. This would entail notification to relevant news media organisations consistently with the requirements in s 11 of the Open Courts Act. Any such proceeding suppression order could only be made if the Court were to be satisfied as to one or more of the grounds specified in s 18 of the Open Courts Act.[102] Relevantly, the Court would only do so if satisfied that the order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means.[103]
[102]Open Courts Act s 17.
[103]Open Courts Act s 18(1)(a); see PQR v Secretary, Department of Justice and Regulation (No 1) [2017] VSC 513; (2017) 53 VR 45, [59]–[62].

On 24 July 2023 my chambers communicated a draft ruling to the parties foreshadowing a proposal to vacate the interim order I made on 18 July 2023 on the basis that there was no real prospect that the applicable test would be met.

At virtually the same time, the arbiter conveyed written submissions to the Court contending that the interim order should be replaced with a proceeding suppression order of 10 years’ duration (arbiter’s post-hearing submissions). It thereby became evident to me that the considerations influencing my approach to the interim suppression order could be intertwined with my approach to the issues in the substantive proceeding, and the extent to which my reasons for judgment might have to traverse the material in question. I have therefore waited until now to reach my decision on the suppression order issues.

In the arbiter’s post-hearing submissions, inter alia he pointed out that the person whose interests might be most affected by the lifting of the order is not a party to the proceeding and has not otherwise been heard on the issue. The arbiter submitted that the Court should not adopt a position that might encourage prospective plaintiffs to expect that proceedings of this kind would usually result in public dissemination of irrelevant material protected by s 154 of the Act. The arbiter also acknowledged that the information currently protected by the interim order is not information obtained by Mr Lew through the internal arbitration process, but is a document created by him. This tends to diminish the considerations supporting the continuation of the order. In his submissions, Mr Lew contended that the information in question was relevant to the proper determination of the proceeding, because it revealed the broader context in which Mr Lew made the Facebook post.

Section 14(1) of the Open Courts Act requires that, in making a substantive — and not merely interim — suppression order, I would have to be satisfied ‘on the basis of evidence, or sufficient credible information’ that is satisfactory to me, that the grounds for making the order are established. On the basis of the information currently available to the Court, including the arbiter’s post-hearing submissions, it would not be appropriate to make a substantive proceeding suppression order over the words spoken by counsel for Mr Lew reading from one of the pages of ‘SA-1’. There is no evidence or other credible information demonstrating the necessity for making the order.[104] Nor am I prepared to draw an inference from general experience that such a order is necessary, assuming that this might be permissible.[105]
[104]Cf Open Courts Act s 14(1); see also PQR v Secretary, Department of Justice and Regulation (No 1) [2017] VSC 513; (2017) 53 VR 45, [53].
[105]PQR v Secretary, Department of Justice and Regulation (No 1) [2017] VSC 513; (2017) 53 VR 45, [53], citing ABC v D1; ex parte The Herald and Weekly Times Limited [2007] VSC 480, [71]. However, that was a case relating to pseudonym orders, not suppression orders under the Open Courts Act.

Further, the presumption in s 4 of the Open Courts Act that the principle of open justice should prevail applies here. The page of evidence in question relevantly sets out extracts from a social media direct message allegedly sent by Mr Corr to Mr Lew, which included offensive, abusive and obscene remarks directed to and about Mr Lew in connection with the proposal relating to the stadium. Some of the remarks referred to crucifixion, and Mr Lew said in his statement to police that he considered them to have an antisemitic undercurrent.[106] It is likely that this is one of the things Mr Lew had this in mind when referring to a ‘vendetta’ by Mr Corr against him. It is also likely that the arbiter had this material in mind in writing paragraph 24(a) of his statement of reasons, reproduced above. It is clearly relevant to the proceeding. Mr Lew was entitled to rely upon it in support of his contention that the facts before the arbiter were such that it was not legally open to the arbiter to find that Mr Lew’s behaviour was in performance of his role as a Councillor. Although I have ultimately rejected that contention, the principle of open justice tends to support public access to that piece of evidence.
[106]See paragraph 56, above.

Further, a summary of aspects of the relevant statement to police is already in the public domain in connection with this matter. I infer that paragraph 24(a) of the arbiter’ decision refers to that statement. The arbiter’s decision and statement of reasons were tabled and the subject of public comment at a meeting of Stonnington City Council on 2 May 2022. The arbiter’s decision is public. I take judicial notice that it is published in unredacted form, and that paragraph 24(a) is in the public domain.[107] Even if the publication of a report of counsel’s references to some of the text in this part of the statement to police would be inconsistent with s 145, the interest in preventing publication is outweighed by the principle of open justice and free communication of court proceedings, including things said in open court.[108]
[107]‘Councillor Conduct Framework, Councillor Governance and Integrity (Web Page) < (accessed on 25 July 2023) contains a link to the attachments of the meeting on 2 May 2024, including an unredacted version of the first defendant’s decision and statement of reasons.
[108]Open Courts Act s 4.

Further, although the material in question appeared in a statement to police in support of an application for an intervention order, there is no suggestion that any child was involved, and so it appears that the statutory prohibition on publication does not apply.[109]
[109]Cf Personal Safety Intervention Orders Act 2010 s 123.

For these reasons, I have decided not to make a substantive proceeding suppression order on the Court’s own motion, and instead I will vacate the interim order.

After considering the arbiter’s post-hearing submissions, I have decided to defer the date on which the interim order will be vacated to 14 days after the publication of these reasons, thereby allowing an opportunity for any interested person to make a substantive proceeding suppression order pursuant to s 10 of the Open Courts Act before the interim order ceases to operate. That way, if there are cogent reasons for the suppression of the material that I am not aware of, they can be explained to the Court and the matter can be heard and determined after notice of the application has been given in accordance with s 11 of the Open Courts Act. This is a far more appropriate course than converting my own motion interim order into a substantive order of 10 years’ duration.

Orders

I will make an order, to take effect on the day 14 days after the making of the order, vacating the interim order I made on 18 July 2023.

I will otherwise invite the parties to make submissions regarding orders disposing of the substantive proceeding in light of these reasons, including any orders as to costs.

Annexure A
Documents on the court file that are to be kept confidential and not made available for inspection:

(a) exhibit ‘SA-1’ to the affidavit of Steven Amendola sworn 14 June 2022, court book pages 24–44;

(b) exhibit ‘SA-2’ to the affidavit of Steven Amendola sworn 14 June 2022, court book pages 45–59 and 61–69;

(c) exhibit ‘SA-3’ to the affidavit of Steven Amendola sworn 14 June 2022, court book pages 70–77;

(d) exhibit ‘SA-5’ to the affidavit of Steven Amendola sworn 14 June 2022, court book pages 80-95;

(e) further affidavit of Steven Amendola sworn 2 September 2022, court book pages 144–149;

(f) exhibit ‘SA-13’ to the further affidavit of Steven Amendola sworn 2 September 2022, court book pages 150–152;

(g) exhibit ‘SA-14’ to the further affidavit of Steven Amendola sworn 2 September 2022, court book pages 153–154;

(h) exhibit ‘SA-15’ to the further affidavit of Steven Amendola sworn 2 September 2022, court book pages 155–161;

(i) affidavit of Steven Amendola sworn 10 July 2023, court book pages 333–335;

(j) exhibit ‘SA-22’ to the affidavit of Steven Amendola sworn 10 July 2023, court book pages 336–340; and

(k) exhibit ‘SA-23’ to the affidavit of Steven Amendola sworn 10 July 2023, court book pages 341–343.

Subject to further or other order, document extract on the court file that is to be kept confidential and not be made available for inspection until 14 days after the making of this order:

(l) exhibit ‘SA-2’ to the affidavit of Steven Amendola sworn 14 June 2022, court book page 60.

[2023] VSC 604

13 October 2023