NEW SOUTH WALES COURT ISSUES JUDGEMENT FOR RE REFERRAL BY DEPUTY SECRETARY, LOCAL GOVERNMENT, UNDER S 438HA OF THE LOCAL GOVERNMENT ACT 1993, CONCERNING MR THALER, A COUNCILLOR [2025] NSWCATOD 102 CASE

Australia, Sept. 8 -- New South Wales Land and Environment Court issued text of the following judgement on Aug. 7:

1. On 23 June 2025, the Deputy Secretary, Local Government (the Secretary) referred to the Tribunal, pursuant to section 438HA(9) of the Local Government Act 1993 (NSW) (the Act), a Departmental Report (the Report) concerning:

1) the alleged failure of Mr Andrew Thaler (the Councillor) to take action, as required by a performance improvement order issued on 6 February 2025 and made under s 438A of the Act (the PIO); as constituted by

2) specified conduct and statements;

3) alleged contraventions of the Snowy Monaro Regional Council Code of Conduct (the Code); and

4) alleged breaches of an undertaking entered into pursuant to the PIO (the Undertaking).

2. Pursuant to s 470A of the Act, the Tribunal may decide to conduct proceedings into the matter, after considering the Report.

3. After reviewing the Report and the submissions of the Secretary and the Councillor, the Tribunal has decided to conduct proceedings into the matter (the referred proceedings).

4. In summary, the Tribunal has found as follows:

1) That, contrary to the submissions by the Councillor and despite some commonality in the conduct particularised in the Report and proposed referred proceedings, on the one hand, and the recently determined matter of Thaler v Secretary, Department of Planning, Housing and Infrastructure [2025] NSWCATOD 88 (Thaler (No 1)), on the other hand, the matters concern distinct issues and there is no "double jeopardy" or "extra-curial punishment" or the like, in the Tribunal conducting the referred proceedings.

2) Further, the Secretary, in the proposed referred proceedings, raises arguable allegations of failure to take action under the PIO and breaches of the Code and the Undertaking, which warrant consideration by the Tribunal.

3) To the extent the Councillor has raised legal or factual defences in his submissions, these should properly be the subject of full argument and evidence, which may be dealt with in the usual course of proceedings in the Tribunal; and may be raised as part of the referred proceedings.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19882ca25cc6fd2f86f27662)

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