Posted on June 5, 2019 by Stuart Simington
Council meetings – Maintaining confidentiality of papers, disorder and sanctions
The governing body of Council is frequently required to consider sensitive documentation when making decisions. Sometimes, the Council needs to make arrangements to secure the information provided to councillors. In Barrak v City of Parramatta Council  NSWLEC 59, the Court was required to consider the validity of a number of resolutions, orders and sanctions imposed in connection with a council’s consideration of a contentious and confidential matter leading up to the termination of its CEO’s employment.
Note: This Court of Appeal handed down its judgment in this matter on 3 September 2019: Barrak v City of Parramatta Council  NSWCA 213. The Court upheld Mr Barrak’s appeal in some limited respects.
The governing body of the Council was considering a confidential report of an independent investigation relating to the employment of its then Chief Executive Officer.
In the course of debate in closed session, a Councillor Barrak described the Lord Mayor as a ‘clown’.
The Mayor asked the councillor to refrain from making such derogatory comments and warned the councillor that if this continued, that he would be expelled.
The derogatory comments continued, and the Mayor (purported to) order that the councillor be expelled from the meeting.
Then, in the course of the councillor leaving the meeting room, the governing body resolved that all confidential material (including notes made by councillors concerning the confidential material under consideration) be surrendered. Councillor Barrak refused to surrender the material and left the meeting.
The Court was required to consider:
- the nature of the derogatory comments and whether they were an act of disorder;
- whether the Mayor’s expulsion of the councillor from the meeting was valid;
- whether the Council’s resolution requiring the surrender of the confidential material and councillors’ notes was valid;
- the validity of the sanctions imposed by Council at subsequent meetings in terms of:
- demanding an apology by the councillor for the earlier behaviour,
- demanding the surrender of the confidential material and notes,
- further expulsions for failure to do so and
- the exclusion of the councillor from his council committee positions.
Councillor Barrak firstly argued that his description of the Lord Mayor as a ‘clown’ during debate at the meeting was not in fact an act of disorder.
In that regard, cl 256(1)(d) of the Local Government (General) Regulation 2000 (now generally reenacted in cl233 of the Regulation) provided that it was an act of disorder if a councillor ‘insults or makes personal reflections on or imputes improper motives to any other councillor‘.
Clause 256(2)(c) provided that the Chairperson could require a councillor, ‘To retract and apologise without reservation for an act of disorder referred to in subclause (1)(d) or (e)‘.
Clause 256(3) provided that ‘A councillor may, as provided by section 10 (2) (a) or (b) of the Act, be expelled from a meeting of a council for having failed to comply with a requirement under subclause (2). The expulsion of a councillor from the meeting for that reason does not prevent any other action from being taken against the councillor for the act of disorder concerned.‘
In rejecting the councillor’s submission that the reference to ‘clown’ did not contravene cl256(1)(d), Moore J observed that ‘how language is used depends not merely of on the word or words selected‘ and that ‘even otherwise entirely inoffensive words can be used in a highly pejorative and insulting fashion when viewed in the context of deployment‘. On the evidence, Moore J held that there was nothing unreasonable, in the Lord Mayor’s determination that the councillor committed an act of disorder at the meeting.
Resolution to secure documents and notes valid
In principle, Moore J also had no objection to the validity of the Council’s resolution requiring the handing back of confidential documents and notes by councillors at least where:
- access would be available to councillors to their own material; and
- no one other than that councillor would have access to that particular councillor’s notes.
Moore J considered that such a resolution was supported by s23 of the Local Government Act 1993 whereby a council may do all such things as are supplemental or incidental to, or consequential on, the exercise of its functions.
Further, the above safeguards were sufficient to overcome any concern that the resolution would prevent councillors from taking notes which may “reflect or reveal politically sensitive matters or considerations“. There was also nothing in the Local Government Act, the Regulation or the Code of Meeting Practice that expressly or by implication, prohibited the adoption of such a resolution.
Resolution to surrender documents not a separate act of disorder
However, the Court found that the Council’s resolution to require Councillor Barrak to surrender the confidential documents was not an act of disorder of itself. This was because the resolution was passed at a point when the councillor was (literally) walking towards the exit door of the chamber after having been (purportedly) expelled by the Mayor. Moore J held that the resolution could not bind the councillor in the face of the meeting given that he was no longer part of the meeting.
Order for expulsion from meeting also invalid
Nevertheless, the Court also found that the expulsion order made by the Mayor was invalid. This was because the Council had not earlier passed an empowering resolution as required by s 10(2)(b) of the Local Government Act.
(2) However, a person (whether a councillor or another person) is not entitled to be present at a meeting of the council or of such a committee if expelled from the meeting:
(a) by a resolution of the meeting, or
(b) by the person presiding at the meeting if the council has, by resolution, authorised the person presiding to exercise the power of expulsion.
Moore J said, ‘…. However, for expulsions such as that which took place … to be valid, s 10(2)(b) requires the Council to have adopted, at an earlier time, a specific resolution vesting power, here relevantly, in the Lord Mayor to have the power to order such expulsions. It is to be remembered that s 10(2)(b) permits such expulsions “by the person presiding at the meeting if the council has, by resolution, authorised the person presiding to exercise the power of expulsion”. Absent the carriage of such a general authorising resolution at some prior time, after the election of the present Council in 2017, the expulsion of Councillor Barrak on 20 February 2019 could not be valid.’
Validity of sanctions passed at a subsequent meeting
At a subsequent meeting, the Council resolved to take sanction Councillor Barrak for his earlier behaviour.
a) That Councillor Barrak be called upon to apologise unreservedly to the Chair and Councillors for:
(i) Not complying with the direction from the Chair at the Council meeting of 20 February 2019 to leave confidential papers at the table in the room;
(ii) Not complying with a Council resolution of 20 February 2019 to return the confidential papers including written notes to the Acting CEO, for the Council’s records prior to leaving the Chamber;
(iii) Making derogatory comments and insulting the Lord Mayor who was chairing the meeting.
c) That, Councillor Barrak return the confidential papers including written notes to the Acting CEO.
d) Further, that in the event that Councillor Barrak does not apologise unreservedly for each item noted in (a) and (b) above, he be expelled from this meeting.
As a result of the rulings discussed above, Moore J held that councillor Barrak could not be required to apologise for the breach in paragraphs (a)(i) or (ii) because these were not acts of disorder for the reasons given above.
Nevertheless, an act of disorder referred to in paragraph a)(iii) was still a valid basis for requiring the councillor to apologise.
The Court also found that the resolutions (c) and (d) were within power and therefore binding on the Councillor who was (on this occasion) present in the face of the meeting when the resolutions were made.
Councillor Barrak, who did not apologise, was therefore expelled from this subsequent meeting (and indeed in a series of subsequent meetings). The expulsions were held to be valid because they were done by resolution of the governing body rather than by order of the Mayor as had occurred at the original meeting.
Removal from Committees – Procedural fairness
The Council then went on to resolve to remove Councillor Barrak from all of his roles on Council committees.
Councillor Barrak argued that this resolution was invalid on grounds that he had not been afforded procedural fairness before the Council did so.
But relying on the decision in Porter v Hornsby Shire Council (1989) 69 LGRA 101, Moore J held that ‘such political decisions are not subject to the niceties of procedural fairness and natural justice…’. Therefore the resolution was valid.
The Barrak case illustrates the power of the governing body to maintain the confidentiality of documents under consideration by adopting reasonable procedures, at least in so far as these are consistent with councillors’ reasonable requirements to perform their civic role.
The case also illustrates the power of the governing body to regulate acts of disorder by various means including by requiring an apology, expulsion of a councillor, and even exclusion of the Councillor from Council committees.