Posted on October 18, 2020 by Megan Hawley and Sophia Urlich

What Constitutes a Leave of Absence from a Council Meeting?

There are significant consequences for councillors who are absent from council meetings, including the ‘vacation of civic office’ in the case of absence from 3 consecutive ordinary meetings of a council without the prior leave of the council.

In Loder v Narrabri Shire Council [2020] NSWLEC 109 (Loder v NSC), the Land and Environment Court considered the distinction between the acceptance of an apology and the grant of a leave of absence under the Local Government Act 1993 (LG Act).

The Facts

The Applicant was elected to Narrabri Shire Council (Council) as a councillor in September 2016.

In February 2020, the Applicant was diagnosed with cancer. She advised the Council of her cancer diagnosis verbally on 4 February 2020, and in writing by email on 18 February 2020.

Due to her illness, and in circumstances known to all other councillors, the Applicant did not attend 3 consecutive ordinary Council meetings on 25 February 2020, 24 March 2020, and 28 April 2020.

The Applicant did not make an application for a leave of absence formally and in writing by way of completing and lodging a Request for Leave of Absence form with the Council, despite being reminded to do so by Council staff. However, she did tender an apology before each of the 3 meetings, and each apology was accepted by the Council by way of a resolution at each meeting.

Following the Applicant’s absence from the 3 meetings, the Council treated the Applicant’s civic office as a councillor as if it had become vacant.

The Applicant argued that the resolutions of the Council at the 3 meetings to accept her apologies, together with the surrounding circumstances, were sufficient to constitute a leave of absence granted by the Council, such that her civic office as a councillor had not become vacant. Further, the Applicant argued that, in denying her status as a councillor, the Council had contravened the LG Act.

The Council argued that the acceptance of an apology at a council meeting is not sufficient to qualify as ‘leave granted by the council’ within the meaning of s234(1)(d)(ii) of the LG Act, and denied that it was acting in breach of the LG Act.

The Court’s consideration 

The Court held that the Council had not breached the LG Act in treating the position of councillor as vacant due to the Applicant’s absence from 3 consecutive ordinary Council meetings.

Distinction between an apology and the grant of a leave of absence

The Court observed that the word ‘apology‘ does not appear in the LG Act or the Local Government (General) Regulation 2005 (LG Regulation), the word ‘leave’ is not defined in the LG Act or the LG Regulation, and the phrase ‘leave of absence‘ is not defined in the LG Act. However, the word ‘leave‘ and the phrase ‘leave of absence‘ are ‘not ambiguous or vague and their ordinary meanings can be readily applied and understood in accordance with the dictionary definitions of the words‘ (see [85]).

In coming to the conclusion that there are important differences between an ‘apology‘ and ‘leave’ or a ‘leave of absence’, and that their meanings are not interchangeable, the Court referred to observations made by the Courts in the decisions in Ryan v Heiler and Ryan v Heiler CA. For example, in Ryan v Heiler, Young J observed that there is ‘… an essential philosophic distinction between leave of absence, which is a dispensation from a requirement which might otherwise exist on the one hand, and an apology, which is an indication that the obligation that exists has not been met and a request for absolution’. Further, in Ryan v Heiler CA, Samuels JA confirmed  the distinction, stating that ‘An apology is one thing, leave of absence is another. I would have thought that an apology was the necessary prerequisite to having the question of leave of absence considered.’ 

Form of application for a leave of absence 

The Court confirmed that there is no prescribed manner for making an application for a leave of absence, and therefore a formal application is not necessarily required. Further, there is no express mandatory requirement that an application be made in writing.

However, this did not alter the Court’s conclusions about the operation of the statutory scheme. The court emphasised that, regardless of form, an application for a leave of absence must be communicated sufficiently clearly, so that the councillors can appreciate that they are being asked to grant a leave of absence, not something else.

In this regard, at [105], the Court held that:

Section 234(1)(d) requires a communication that a leave of absence is sought to enable a council to comprehend that is what it is being asked to determine. Proffering an apology to a council meeting which is accepted by resolution without more to alert a council that what is being sought is a leave of absence is not compliant with s 234(1)(d). 

Further, at [91] – [92], the Court held that:

The LG Act requires a resolution of a council that a leave of absence be granted, given the provisions of s 377(1)(r). This suggests that a council must be aware that it is considering a leave of absence in passing the necessary resolution. In other words, that the Council was granting a leave of absence by inference, as the Applicant’s case requires, does not reflect the express obligation confirmed by s 377(1)(r)… a council must be aware that it is being asked to grant a leave of absence in order to determine such a matter. Resolving to accept an apology is not by inference the granting of a leave of absence if that is not what the councillors understood they were doing.

In the present case, the Court found that there was no evidence that the Applicant had asked the councillors to make a resolution granting a leave of absence, and the councillors did not in fact resolve to grant a leave of absence. Rather, they simply resolved to accept the Applicant’s apologies. If it were the case that the Applicant had attempted to make an application for a leave of absence, her application was not clear enough, as the councillors did not understand that they were being asked to grant a leave of absence at each of the 3 meetings she was absent from.

Acceptance of an apology does not constitute the grant of a leave of absence 

The Court also considered the interplay between s360 and s234(1)(d) of the LG Act in coming to the conclusion that the acceptance of an apology by a Council does not amount to the grant of a leave of absence.

Section 360 of the LG Act provides that the regulations may prescribe a model code of meeting practice for the conduct of council meetings and cl 232 of the LG Regulation specifies that, for the purposes of s360, the Model Code of Meeting Practice for Local Councils in NSW published in the Gazette on 14 December 2018 (OLG Model Code) is prescribed as the model code of meeting practice for the conduct of meetings of councils and committees of councils.

The Court held that there is no inconsistency between s360 and s234(1)(d) of the LG Act, and that the OLG Model Code, adopted in the Council’s Code of Meeting Practice (2019) (2019 Council Code), identifies the relevant legal requirements for the conduct of council meetings in 2020, such that the Council had to comply with it by operation of s360(5) of the LG Act when making decisions in relation to s234(1)(d) (see [104]).

Significantly, mandatory cl 5.4 – 5.7 of the OLG Model Code dealing with a leave of absence are mirrored in cl 5.3 – 5.6 of the 2019 Council Code.

At [100] – [101], the Court held that:

The OLG Model Code adopted by the Council in the 2019 Council Code provides expressly for the circumstances presently under consideration to the effect that accepting an apology does not amount to the giving of a leave of absence… Clause 5.3 of the 2019 Council Code (cl 5.4 of the OLG Model Code) states in the last sentence that an apology does not constitute the granting of a leave of absence for the purposes of the code and the Act.

Further, the Court stated that ‘The OLG Model Code does inform the application of the plain words in s 234(1)(d) that without an approved leave of absence a councillor’s office becomes vacant if three consecutive council meetings are missed in stating that an acceptance of an apology by the council does not suffice as a leave of absence’ (see [102]).

Implications of the decision 

The decision in Loder v NSC confirms that the mere tendering and acceptance of an apology is not sufficient to amount to the grant of a leave of absence. Further, in order to avoid the consequence of their civic office being treated as vacant following their absence from 3 consecutive ordinary meetings of a council, a holder of a civic office, such as a councillor, must clearly communicate to the Council that they seek a leave of absence prior to or at any of those 3 meetings, to ensure that the council fully comprehends that it is considering a leave of absence and makes a conscious decision in passing a resolution to grant it.

The decision in Loder v NSC can be read here.

To discuss this blog, please contact Megan Hawley, Partner on 02 8235 9703 or Sophia Urlich, Lawyer on 02 8235 9708.