Posted on July 23, 2017 by Megan Hawley

OLG’s Role in Misconduct Complaints

A decision of the NSW Civil and Administrative Tribunal (NCAT) has confirmed that the Chief Executive of the Office of Local Government (Chief Executive) has powers in respect of misconduct by council officials which may be separate to the processes under the administrative procedures for the Model Code of Conduct.

A Councillor had been the subject of a complaint under the Council’s adopted Code of Conduct (Code). The Council’s conduct reviewer referred the complaint to the NSW Police. The Council’s ‘Procedures for the Administration of the Model Code of Conduct‘  (Code Procedures) provided that if a complaint under the  Code  was referred to an external agency or body, such as the Police, then the referral shall ‘finalise consideration of the matter’ under the Code unless Council is advised otherwise by the external body.

The Police completed their consideration of the matter and did not advise Council to do anything further.

The conduct reviewer then referred the matter to the Chief Executive.

Section 440H of the Local Government Act 1993 provides that the Chief Executive may conduct an investigation to determine if a councillor has engaged in misconduct, or prepare a departmental report on alleged misconduct without carrying out an investigation. This may be done at the Chief Executive’s own instigation, or as a result of a referral.

Under s440J(2), the Chief Executive may refer such a matter to NCAT. This is what was done in this case.

The Councillor argued that as a result of the referral by Council to the Police of the complaint under the Code , the Chief Executive had no power to take further action regarding the same incident under the Local Government Act.

NCAT disagreed and stated that referral of a matter by the Council to an external body  in response to a complaint did not prohibit or invalidate for all time, any further consideration or referral of the matter, including any consideration at the ‘departmental level‘ by the Chief Executive.

It remained open to the Chief Executive to conduct his own investigation, arrange for preparation of a departmental report into the investigation and refer the matter to NCAT.

On the particular facts of this case, it seems appropriate that the referral to the Police did not prevent other referrals, as whilst criminal sanctions were not considered appropriate by the Police, disciplinary sanctions may well have been appropriate (and were considered to be by the Chief Executive). However, in other factual scenarios, a referral of a matter to more than one body in succession could operate unfairly to the person the subject of the complaint.

On the basis of this decision, however, Councils and council officials should not consider that any consideration of a complaint is complete as a result of a referral under the Code Procedures.

A copy of the decision can be found here.

Should you wish to discuss this case, please contact Megan Hawley, Partner on 8235 9704 or by email, at