Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Executive Director, Local Government under delegation from the Secretary, Department of Planning and Industry v Robinson [2023] NSWCATOD 42 Hearing dates: 14 March 2023 Date of orders: 31 March 2023 Decision date: 31 March 2023 Jurisdiction: Occupational Division Before: R C Titterton OAM, Senior Member Decision: 1. Each of the eight complaints are established. 2. Costs are reserved. 3. In the first instance, these reasons are to be published only to the parties and not on NSW Caselaw. This is for the purpose of allowing the parties the opportunity to have any part of the reasons redacted pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW). 4. Any submissions about redaction are to be filed by either party within 14 days. 5. The other party may reply withing a further 7 days. 6. The matter will be set down for a Stage 2 hearing on 1 June 2023 at 10.00am, with a current estimated length of hearing being half a day. 7. The applicant is to file and serve any evidence and submissions for the Stage 2 hearing on or before 9 April 2023. 8. The respondent is to file and serve any evidence and submissions in response on or before 10 May 2023. 9. The applicant may reply to any evidence and submissions filed by the respondent on or before 17 May 2023. 10. Each party has liberty to apply. Catchwords: TRADES AND OCCUPATIONS – misconduct by Councillor - referring to the Mayor as "fatso" and making other disparaging remarks concerning her appearance - repeatedly interrupting a meeting of Council - making disparaging remarks to councillors about their appearances - making disparaging and discriminatory remarks to a councillor because of his homosexuality - making disparaging and discriminatory remarks about a homosexual councillor to journalists - engaging in unwanted conduct to the Mayor during the taking of photographs Legislation Cited: Local Government Act 1993 (NSW) – ss 440F, 440H, 440J, 440N, 470A, 482A Local Government Regulations 2005 (NSW) – s 182 Cases Cited: Cornish v Secretary, Department of Planning, Industry and Environment [2019] NSWSC 1134 Phillips v Director General, Department of Premier and Cabinet [2014] NSWCATOD 48 Re referral by Executive Director, Local Government under s 440J and 440N of the Local Government Act 1993, concerning Mr Robinson, a former Councillor [2022] NSWCATOD 167 Texts Cited: None Cited Category: Principal judgment Parties: Applicant: Executive Director, Local Government under delegation from the Secretary, Department of Planning and Industry Respondent: Allan Robinson Representation: Counsel: Applicant: M Cobb-Clark Solicitors: Office of Local Government Respondent, no appearance File Number(s): 2022/00148260 Publication restriction: Nil REASONS FOR DECISION Introduction 1. On or about 18 May 2022, the Tribunal received a letter dated 18 May 2022 by which the applicant referred allegations of misconduct by the respondent Mr Allan Robinson, a former Councillor of the Newcastle City Council (Council), to the Tribunal for its consideration under the Local Government Act 1993 (NSW) (Act). 2. The letter was accompanied by a General Application Form, together with a copy of a report dated April 2022 of investigations into the allegations undertaken under s 440H of the Act (Report). 3. The referral was made under s 440J(2)(b) and s 440N(3) of the Act. 4. Under ss 470A(1) and (2) of the Act, after considering a report presented to it under s 440J of the Act, the Tribunal may decide to conduct proceedings into the matter, or may decide not to conduct proceedings into the matter. 5. On 12 December 2022, the President of the Tribunal, Armstong J, determined that the Tribunal would conduct proceedings into this matter: Re referral by Executive Director, Local Government under s 440J and 440N of the Local Government Act 1993, concerning Mr Robinson, a former Councillor [2022] NSWCATOD 167. Procedural background; involvement of the respondent 1. On 11 November 2022 the Registry received an email from Mr Paul O'Sullivan of Shotters Lawyers. Relevantly, the email stated: I act for the Respondent. I am instructed:- Subject to no Order as to costs, the Respondent does not oppose any of the Orders referred to Section 482A of the Local Government Act 1992. The Respondent does not wish to participate in the proceedings. I do not hold instructions to act further in the proceedings. 1. Section 482A of the Act provides: 482 Decision of NCAT - pecuniary interests matters not involving councillors or administrators (1) This section applies to complaints relating to breaches of pecuniary interests duties by persons other than councillors, former councillors, administrators or former administrators. (2) If it finds a complaint against an employee of the council is proved, the Civil and Administrative Tribunal may-- (a) counsel the employee, or (b) reprimand the employee, or (c) recommend that the council take specified disciplinary action against the employee (including counselling or reprimanding the employee), or (d) recommend dismissal of the employee. (3) The Civil and Administrative Tribunal may, if it finds a complaint against a member of a council committee is proved-- (a) counsel the member, or (b) reprimand the member, or (c) suspend the member from office as member of the committee for a period not exceeding 6 months, or (d) disqualify the member from holding office as a member of any committee of that council for a period not exceeding 5 years. (4) The Civil and Administrative Tribunal may, if it finds a complaint against an adviser to a council is proved-- (a) counsel the adviser, or (b) reprimand the adviser, or (c) suspend the adviser from office as adviser for a period not exceeding 6 months, or (d) disqualify the adviser from holding office as an adviser to that council for a period not exceeding 5 years. (4A) The Civil and Administrative Tribunal may, if it finds a complaint against a delegate of a council (other than the general manager of a council) is proved-- (a) counsel the delegate, or (b) reprimand the delegate, or (c) suspend the delegate from acting as a delegate for a period not exceeding 6 months, or (d) disqualify the delegate from being a delegate of that council for a period not exceeding 5 years. (5) In determining which action, if any, to take against a person under this section, the Tribunal may take into account any previous complaints proved against the person, any action previously taken against the person and any other relevant matters. 1. It would appear that by his email, the respondent is not opposing any order the Tribunal might make pursuant to s 482A of the Act. 2. The last directions hearing prior to the Stage 1 hearing on 14 March 2023 was held on 16 January 2023. On that occasion, there was no appearance by the respondent. In addition to the usual orders for the filing and service of evidence and submissions, the Tribunal noted: 4. There was no appearance by the respondent today, who has previously indicated that he does not wish to participate in the proceedings. The respondent should advise the applicant and the Registry whether or not he intends to file evidence and submissions, and whether he proposes to attend the hearing, regardless of whether or not he files any evidence or submissions. 1. The respondent did not respond, either to the Tribunal or the applicant. 2. At the Stage 1 hearing on 14 March 2023, again there was no appearance by the respondent. The applicant tendered an affidavit of Ms Alice Beasley affirmed 8 March 2023. Ms Beasley is a Governance Officer with the Department of Planning and Environment. Her affidavit sets out the steps taken by the applicant to contact the respondent to determine whether or not he wished to participate in the proceedings, to provide its evidence and submissions to him. 3. Based on that evidence and the notice of the hearing on the Tribunal filed I am satisfied that the respondent had notice of the hearing, and that it was appropriate to proceed in his absence. I gave oral reasons for doing so during the course of the hearing. The Complaints 1. The complaints of misconduct are set out in Attachment A. The Evidence 1. The applicant relies on the Report and the 378 pages of attachments. 2. As noted, no evidence was filed by the respondent. Relevant provisions of the Act and the Code 1. It is appropriate to set out the relevant provisions of the Act, the Local Government Regulations 2005 (NSW) and the Code of Conduct of the City of Newcastle Council dated 26 June 2019 (Code). 2. The following provisions of the Act relevant to this matter are: 440F Definitions (1) In this Chapter— misconduct of a councillor means any of the following— (a) a contravention by the councillor of this Act or the regulations, (b) a failure by the councillor to comply with an applicable requirement of a code of conduct, (c) a failure by a councillor to comply with an order issued by the Departmental Chief Executive under this Division, (d) an act of disorder committed by the councillor at a meeting of the council or a committee of the council, (e) an act or omission of the councillor intended by the councillor to prevent the proper or effective functioning of the council or a committee of the council. (2) For the purposes of determining whether a person has engaged in misconduct, the person does not breach a provision of a code of conduct that requires the disclosure of a pecuniary interest if the person did not know and could not reasonably be expected to have known that the matter under consideration at a meeting was a matter in which the person had a pecuniary interest. (3) A reference in this Division to misconduct includes a reference to misconduct that consists of an omission or failure to do something. 1. The following section of the Local Government General Regulation 2005 (which had effect as at 23 July 2019) is relevant to this matter: 182 Acts of disorder For the purposes of section 490A of the Act, a councillor commits an act of disorder if the councillor, at a meeting of a council or a committee of a council— (a) contravenes the Act, this Regulation or any provision of the code of meeting practice adopted by the council under section 360(3) of the Act, including any provisions incorporated in the adopted code that are prescribed by this Regulation as mandatory provisions of the model code of meeting practice, or (b) assaults or threatens to assault another councillor or person present at the meeting, or (c) moves or attempts to move a motion or an amendment that has an unlawful purpose or that deals with a matter that is outside the jurisdiction of the council or committee, or addresses or attempts to address the council or committee on such a motion, amendment or matter, or (d) insults, makes unfavourable personal remarks about, or imputes improper motives to, any other councillor or a member of staff or delegate of a council, or (e) says or does anything that is inconsistent with maintaining order at the meeting or is likely to bring the council or committee into contempt. The Code 1. As is stated in the Introduction to the Code: This Code applies to Councillors. It is based on the Model Code of Conduct for Local Councils in NSW (the Model Code of Conduct) which has been prescribed under the Local Government (General) Regulation 2005 (the Regulation). Section 440 of the Local Government Act 1993 (Act) requires every council and joint organisation to adopt a code of conduct that incorporates the provisions of the Model Code of Conduct. A council's or joint organisation's adopted code of conduct may also include provisions that supplement the Model Code of Conduct and that extend its application to persons that are not "Council officials" for the purposes of the Model Code of Conduct (eg volunteers, contractors and members of wholly advisory Committees). The Model Code of Conduct sets the minimum standards of conduct for CN [1] officials. It is prescribed by regulation to assist CN officials to: understand and comply with the standards of conduct that are expected of them enable them to fulfil their statutory duty to act honestly and exercise a reasonable degree of care and diligence (section 439) act in a way that enhances public confidence in local government. Councillors, members of staff of councils, delegates of councils, (including members of council committees that are delegates of a council) and any other person a council's adopted code of conduct applies to, must comply with the applicable provisions of their council's code of conduct. It is the personal responsibility of CN officials to comply with the standards in the code and to regularly review their personal circumstances and conduct with this in mind. Failure by a Councillor to comply with the standards of conduct prescribed under this Code constitutes misconduct for the purposes of the Act. The Act provides for a range of penalties that may be imposed on Councillors for misconduct, including suspension or disqualification from civic office. A Councillor who has been suspended on three or more occasions for misconduct is automatically disqualified from holding civic office for five years. 1. The following sections of the Code are relevant to this matter: Pt 3 General conduct obligations General Conduct 3.1 You must not conduct yourself in a manner that: a) is likely to bring CN or other CN officials into disrepute b) is contrary to statutory requirements or CN's administrative requirements or policies c) is improper or unethical is an abuse of power d) causes, comprises or involves intimidation or verbal abuse e) involves the misuse of your position to obtain a private benefit g) constitutes harassment or bullying behaviour under this Code, or is unlawfully discriminatory. 3.2 You must act lawfully, honestly and exercise a reasonable degree of care and diligence in carrying out your functions under the Act or any other Act (section 439). 3.3 You must treat others with respect at all times. … 3.7 You must not harass or unlawfully discriminate against others, or support others who harass or unlawfully discriminate against others. This includes, but is not limited to, harassment and discrimination on the grounds of sex, pregnancy. breastfeeding, age, race, responsibilities as a carer, marital or domestic status, disability. homosexuality transgender status, infectious disease or political, religious or other affiliation. 3.8 For the purposes of this code, "harassment" is any form of behaviour towards a person that: a) is not wanted by the person b) offends, humiliates or intimidates the person, and c) creates a hostile environment. 1. I turn now to each complaint. Complaint One 1. This complaint is that on 27 June 2019, the respondent sent an email to a Council constituent that contained the following words: I've spoken to Grahame about this something needs to be done if it was in fleet st where fatsos parents lived it would have already happened. 1. The email was not in evidence before the Tribunal. However, a conduct reviewer, Mr Phil O'Brien, appointed under Pt 6 of the Procedures for the Administration of the Model Code of Conduct, interviewed the respondent about the email, and showed him a copy. The respondent could not recall sending the email, but did not deny that he did. He told Mr O'Brien: I don't [remember] but if I spoke to Graham, I don't remember a Graham about this. Something needs to be done. If it was in Fleet Street where Fatso's parents lives, I would say that. 1. Mr O'Brien asked the respondent who he was referring to when he wrote "fatso". The respondent replied that he was referring to the Lord Mayor, Clr Nuatali Nelmes. When asked why he would make that remark, the respondent replied that he did not think highly of her and said: Yeah, well I don't talk highly of her. You know, she's never had a job. The only job she's had, she's a dressing room attendant for a union side. Yeah and I've watched her sack people. I've watched her employ people that should never be employed. Yeah so I am not going to say anything about her. And whenever you see her on tele, have a look at her. She's – I don't know what it costs Council to have the makeup done every time. She's on the news every night. She has her makeup done. Without the makeup she looks like a spotted dog, a hyena kind of thing. 1. Based on the evidence summarised above I am satisfied that the respondent sent an email which referred to a "fatso" and that he intended this to be a reference to Mayor Nelmes. 2. The applicant alleges that in sending the email referring to Mayor Nelmes as "fatso", the respondent failed to treat Mayor Nelmes with respect, as he was required to do under cl 3.3 of the Code of Conduct of the City of Newcastle Council dated 26 June 2019 (Code of Conduct). 3. Clause 3.3 is set out above. 4. I am satisfied that in sending the email the respondent did not treat Mayor Nelmes with respect. I accept the applicant's submission that referring to someone as 'fatso' is evidence of disrespectful treatment and therefore a contravention of cl 3.3 of the Code of Conduct. 5. In the circumstances, it is not necessary to consider the applicant's alternative claim that in sending an email to a constituent containing a derogatory remark and reflection on Mayor Nelmes' personal appearance, the respondent acted in a way that is improper in contravention of cl 3.1(c) of the Code. Complaint Two 1. It is convenient to consider Complaint Two after considering Complaints Three, Four and Five. Complaint Three 1. This complaint is that during a meeting of Council on 23 July 2019, the respondent said to Clr Duncan: Tea is nearly ready Mrs Duncan so we'll get going soon." You need a trough. 1. Based on the transcript of meeting and the video recording of the meeting I find that those words were said by the respondent to Clr Duncan. In addition, the respondent confirmed to Mr O'Brien that the remarks were directed towards Clr Duncan. 2. The respondent also told Mr O'Brien that the remarks were made because of his view that Clr Carol Duncan was a large woman who took home large amounts of food provided by Council to councillors at dinners after Council meetings. The respondent told Mr O'Brien: Now Councillor Duncan fuck me mate. I'm flat out, you couldn't carry what she takes home. She's a big chunky woman. She's got fucking legs like Blocker Roach [a former rugby league player]. She's a fucking big unit. You've got no idea what she takes. It's embarrassing what she takes home. 1. I am satisfied that by saying to Clr Duncan "you need a trough" the respondent did not treat Mayor Nelmes with respect. I am satisfied that contravened cl 3.3 of the Code of Conduct. and is misconduct for the purposes of s 440F(1)(b) of the Act. Complaint Four 1. This complaint concerns another incident during the same meeting. It is alleged that the respondent said in the course of debate concerning Mayor Nelmes' appointment to a remunerated position on a board: And you know, some people have got more hide than Jessie the Elephant and look like it, you know. 1. Based on the transcript of meeting and the video recording of the meeting I find that those words were said by the respondent and concerned Mayor Nelmes. In addition, the respondent confirmed to Mr O'Brien that the remarks were directed towards Mayor Nelmes. 2. Mr O'Brien found that in making the remark, the respondent might have intended to use an Australian idiom referring to a person's temerity rather than their physical appearance. The applicant disagrees with the conduct reviewer's conclusion, noting that neither it nor the Tribunal is bound to accept that conclusion: Phillips v Director General, Department of Premier and Cabinet [2014] NSWCATOD 48; Cornish v Secretary, Department of Planning, Industry and Environment [2019] NSWSC 1134 at [73]. 3. The applicant submits that the remark was made by the respondent in reference to Mayor Nelmes physical appearance. The applicant submits that the conduct reviewer's conclusion that the respondent was simply remarking on Mayor Nelmes temerity fails to give any weight to the words "and look like it", which do not appear in the idiom referenced by the conduct reviewer. 4. The applicant submits that when considered together with the email sent by the respondent on 23 July 2019, where he referred to Mayor Nelmes as "fatso", as well as the further gratuitous remarks made by him to the conduct reviewer about Mayor Nelmes appearance, it becomes clear that the applicant was referring to Mayor Nelmes physical appearance. 5. I accept this submission. The words used by the respondent were disrespectful and thus a contravention of cl 3.3 of the Code. This is misconduct for the purposes of s 440F(1)(b) of the Act. Complaint Five 1. During the same Council meeting, the respondent said words to the effect of: I think we had this argument before with custard. 1. This is recorded in the transcript, as well as on the video recording of the Council meeting. 2. During his interview with the conduct reviewer, the respondent admitted that he had used the expression "custard ass", and that this expression was directed towards Clr Declan Clausen. 3. When Mr O'Brien asked the respondent why he made that remark, the respondent said: Well, he's a poofter. And I heard someone call – I heard someone years ago, say – called this – like, there's poofters and there's poofters. […] But, this bloke who wants to fucking paint pedestrian crossings rainbow at the cost of $60,000 to $70,000 of mine and your money Phil [O'Brien, the conduct reviewer]. You're a ratepayer and – of our money to paint a rainbow, a pedestrian crossing rainbow because you're gay. And fucking equal marriage. If his dad fucked his mate, how would Declan ever be born? […] They think it's normal. 1. When asked how Clr Clausen reacted to his remark, the respondent stated: I think he sat down on his loose ass after I called him that." 1. The Applicant submits that the words "custard" or "custard ass" were a homophobic remark directed by the respondent towards Clr Clausen. 2. In his interview with the investigator, Clr Clausen stated that he believed that those terms, in the respondent's mind: had some links to semen and other things; quite an unpleasant connotation. 1. Councillor Clausen told the conduct reviewer that he found the comments to be objectionable. 2. The applicant submits that: 1. the Tribunal should conclude that the use of the words 'custard' or 'custard ass' by the respondent was conduct that was not wanted by Clr Clausen, and was conduct that Clr Clausen found offensive; 2. the making of homophobic remarks during a public Council meeting is self-evidently conduct that creates a hostile environment within that meeting; 3. each of the elements of the definition of harassment in cl 3.8 of the Code of Conduct has been satisfied; 4. by making the remark, the respondent contravened cl 3.7 of the Code of Conduct, which prohibits harassment or discrimination on the grounds of, among other things, homosexuality. This is misconduct for the purposes of s 440F(1)(b) of the Act. 1. I accept these submissions, which are clearly correct. 2. In the circumstances, it is not necessary to consider the applicant's alternative claim that the remark directed by the respondent towards Clr Clausen amounted to a failure to treat Clr Clausen with respect, which is a contravention of cl 3.3 of the Code. Complaint Two 1. This complaint relates to the various remarks made by the respondent to other councillors, and to other inappropriate conduct during the Council meeting of 23 July 2019. 2. In addition to the matters discussed above, the applicant submits that the recording of the Council meeting shows the respondent repeatedly interjecting and disregarding the Mayor's attempts to bring him, and the Council meeting, to order. The applicant submits that the respondent repeatedly interrupted speakers and refused to withdraw disparaging remarks. This conduct continues intermittently for a period of about 15 minutes, between about the 1:09:00 and 1:25:00 marks on the recording. 3. Having reviewed the transcript of proceedings and video recording of the Council meeting I accept the applicant's submissions. 4. The applicant submits that this conduct amounts to an act of disorder as defined in s 182(e) of the Local Government (General) Regulations 2005 (NSW) which had effect as at 23 July 2019, because it involved the respondent saying and doing things that were inconsistent with maintaining order at the meeting. 5. Section 440F(1)(d) of the Act provides that acts of disorder constitute misconduct for the purposes of the Act. 6. Accordingly, I find Complaint Two proved. Complaints Six and Seven 1. These Complaints can be considered together. 2. Complaint Six is that on 25 July 2019, the respondent was contacted by a journalist from the Newcastle Herald to discuss the remarks made by him at the Council meeting on 23 July 2019. The respondent had sent an email to that journalist which relevantly stated: "I have no problem with poofs. I have one work for me. I'm very good friends with three poofs who I'm proud to say they are my friends." 1. Those remarks were subsequently reported in the Newcastle Herald on 26 July 2019, with the word "poof" being redacted. 2. During his interview with Mr O'Brien, the respondent told him that although he did not recall the specific interview, the quotation in the article was "exactly what I would have said". The respondent also made the following remarks to the conduct reviewer: Yeah what's wrong with – I'd rather call them poofs than fucking, what do they call them, nudgers and shit shovers. I think I'd rather be called a poof than a fucking shit shover. What's wrong with the word poof? If you're a poof you're a fucking poof? You can't be half a poof can you Phil? Phil, can you be half a poof? […] If you're a fucking poof, you're a poof. 1. The respondent admits making those remarks to the journalist. 2. Clause 3.1(a) prohibits people who are subject to the Code of Conduct from engaging in conduct that is likely to bring the Council into disrepute. The applicant submits that if a councillor is interviewed by a journalist in relation to remarks made by the councillor during a Council meeting, and then makes on the record homophobic remarks to the journalist, then this conduct is likely to bring the Council into disrepute. 3. I accept this submission and find that the respondent contravened cl 3.1(a) of the Code of Conduct, which is misconduct for the purposes of s 440F(1)(b) of the Act. 4. Allegation 7 is that on about 26 July 2019, the respondent spoke with a journalist of The Guardian. During that conversation, the respondent repeated the contents of his email to the Newcastle Herald journalist, made several other homophobic remarks, and said words to the effect of: Why should it be offensive? If you're a fucking poof, you're a poof. 1. Mr O'Brien did not ask the respondent about his interview with The Guardian. The contents of Allegation 7 are taken from the text of the article published by The Guardian. The applicant submits that the quotes attributed to the respondent are entirely consistent with the quotes that he admitted giving to The Newcastle Herald, and are also consistent with the further remarks made by the respondent to the conduct reviewer. 2. The applicant submits that fby making the remarks that he did to the Guardian journalist, the respondent engaged in conduct that was likely to bring Council into disrepute, and thereby contravened cl 3.1(a) of the Code. 3. I accept this submission and find that the respondent contravened cl 3.1(a) of the Code of Conduct, which is misconduct for the purposes of s 440F(1)(b) of the Act. Complaint Eight 1. This complaint relates to the respondent's conduct on about 25 February 2020, during the taking of photos of a group of councillors in the Council chambers. 2. Immediately before the photo was taken, the respondent placed his arm around Mayor Nelmes's shoulder. Mayor Nelmes described this act to Mr O'Brien in the following terms: Honestly, there was no consent at all. He just grabbed hold of me… And he did it in front of – it was – it wasn't like – it wasn't soft. He grabbed hold of me. His arm went right around. I have broad shoulders. His arm went right around my whole body and he – his hands pressed into my shoulders and he squeezed me and grabbed hold of me. So my arms were down by my side and I thought "I'll just look straight ahead and he'll eventually let go of me". […] He grabbed me, like, his hands were pressed in, squeezing me hard – like, you know, as probably as hard as he could […] But I know what he's like, so I know that he was trying to intimidate me. 1. The applicant submits that the photos make it clear that the physical contact occurred, and Mayor Nelmes's evidence makes clear that such physical contact was unwanted by her, and had the effect of intimidating her. 2. Accordingly, the applicant submits that the respondent harassed Mayor Nelmes, which breached cl 3.7 of the Code of Conduct, and that this is misconduct for the purposes of s 440F(1)(b) of the Act, in that the conduct is conduct within the meaning of cl 3.8(a) of the Code. 3. I accept this submission and find this Complaint established. Conclusion 1. For the above reasons I find all eight complaints established. Orders 1. The Tribunal orders: 1. Each of the eight complaints are established. 2. Costs are reserved. 3. In the first instance, these reasons are to be published only to the parties and not on NSW Caselaw. This is for the purpose of allowing the parties the opportunity to have any part of the reasons redacted pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW). 4. Any submissions about redaction are to be filed by either party within 14 days. 5. The other party may reply within a further 7 days. 6. The matter will be set down for a Stage 2 hearing on 1 June 2023 at 10.00am, with a current estimated length of hearing being half a day. 7. The applicant is to file and serve any evidence and submissions for the Stage 2 hearing on or before 19 April 2023. 8. The respondent is to file and serve any evidence and submissions in response on or before 10 May 2023. 9. The applicant may reply to any evidence and submissions filed by the respondent on or before 17 May 2023. 10. Each party has liberty to apply. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar Executive Director, Local Government under delegation from the Secretary, Department of Planning and Industry v Robinson Grounds for Application Ground 1 That on or about 27 June 2019, Allan Robinson, while he was a councillor of the City of Newcastle Council (Council), committed misconduct for the purposes of s 440F(1)(b) of the Local Government Act 1993 (Act) by breaching cl 3.3 of the Code of Conduct of the City of Newcastle Council dated 26 June 2019 (Code of Conduct), which is an applicable requirement of a code of conduct. Particulars a. As at 27 June 2019, Allan Robinson was a councillor of Council, and the Code of Conduct applied to him. b. Clause 3.3 of the Code of Conduct states "You must treat others with respect at all times." c. On about 27 June 2019, Allan Robinson sent to a resident of the City of Newcastle Council area an email that contained the following words: "I've spoke to Grahame about this something needs to be done if it was in fleet st where fatsos parents live it would have already happened." d. The reference to 'fatso' in the email was to Clr Nuatali Nelmes, the Lord Mayor of Newcastle (Clr Nelmes). e. In sending the email with the above sentence, Allan Robinson failed to treat Clr Nelmes with respect. f. In the premises, Allan Robinson breached cl 3.3 of the Code of Conduct. Ground 1a (alternative to Ground 1) That on or about 27 June 2019, Allan Robinson, while he was a councillor of Council, committed misconduct for the purposes of s 440F(1)(b) of the Act by breaching cl 3.1(c) of the Code of Conduct by conducting himself in a manner that is improper. Particulars a. As at 27 June 2019, Allan Robinson was a councillor of Council, and the Code of Conduct applied to him. b. Clause 3.1(c) of the Code of Conduct states "You must not conduct yourself in a manner that is improper or unethical". c. Particulars (c)-(d) to Ground 1 are repeated. d. In sending the email with the sentence in particular (c) to Ground 1, Allan Robinson conducted himself in a manner that is improper, because the email contained a derogatory remark in reference to Clr Nelmes. e. In the premises, Allan Robinson breached cl 3.1(c) of the Code of Conduct. Ground 2 That on about 23 July 2019, Allan Robinson, while he was a councillor of Council, committed misconduct for the purposes of s 440F(1)(d) of the Act by committing an act of disorder. Particulars a. On 23 July 2019, Allan Robinson attended a meeting of Council. b. During that meeting, Allan Robinson: (i) repeatedly interrupted speakers who were entitled to speak at that point in time; (ii) refused to withdraw disparaging remarks made towards other councillors; and (iii) made remarks bringing the Council into disrepute. a. In the premises, Allan Robinson engaged in conduct that was inconsistent with maintaining order at the Council meeting, which is an act of disorder as defined in reg 182(e) of the Local Government (General) Regulations 2005. Ground 3 That on about 23 July 2019, Allan Robinson, while he was a councillor of Council, committed misconduct for the purposes of s 440F(1)(b) of the Act by breaching cl 3.3 of the Code of Conduct, which is an applicable requirement of a code of conduct, by failing to treat Clr Duncan with respect. Particulars a. As at 23 July 2019, Allan Robinson was a councillor of Council, and the Code of Conduct applied to him. b. Clause 3.3 of the Code of Conduct states "You must treat others with respect at all times." c. On 23 July 2019, Allan Robinson attended a meeting of Council. d. During that meeting, Allan Robinson said words to the effect: "Tea is nearly ready Mrs Duncan so we'll get going soon" and "you need a trough". e. The words were directed towards Clr Carol Duncan. f. The words were said in reference to the size of Clr Duncan's body. g. In making those remarks, Allan Robinson failed to treat Clr Duncan with respect. h. In the premises, Allan Robinson breached cl 3.3 of the Code of Conduct. Ground 4 That on about 23 July 2019, Allan Robinson, while he was a councillor of Council, committed misconduct for the purposes of s 440F(1)(b) of the Act by breaching cl 3.3 of the Code of Conduct, which is an applicable requirement of a code of conduct, by failing to treat Clr Nelmes with respect. Particulars a. As at 23 July 2019, Allan Robinson was a councillor of Council, and the Code of Conduct applied to him. b. Clause 3.3 of the Code of Conduct states "You must treat others with respect at all times." c. On 23 July 2019, Allan Robinson attended a meeting of Council. d. During that meeting, Allan Robinson said words to the effect: "Some people have got more hide than Jessie the Elephant and look like it." e. Those words were directed towards Clr Nelmes. f. In making that remark, Allan Robinson failed to treat Clr Nelmes with respect. g. In the premises, Allan Robinson breached cl 3.3 of the Code of Conduct. Ground 5 That on about 23 July 2019, Allan Robinson, while he was a councillor of Council, committed misconduct for the purposes of s 440F(1)(b) of the Act by breaching cl 3.7 of the Code of Conduct, which is an applicable requirement of a code of conduct, by harassing Clr Declan Clausen. Particulars a. As at 23 July 2019, Allan Robinson was a councillor of Council, and the Code of Conduct applied to him. b. Clause 3.7 of the Code of Conduct states "You must not harass or unlawfully discriminate against others… this includes, but is not limited to… harassment and discrimination on the grounds of… homosexuality." c. On 23 July 2019, Allan Robinson attended a meeting of Council. d. During that meeting, Allan Robinson said words to the effect: "I think we had this argument before with custard." e. Those words were directed towards Clr Declan Clausen. f. The word 'custard' was used by Allan Robinson as a derogatory term for someone who is homosexual. g. The making of the remark by Allan Robinson was not conduct that was wanted by Clr Clausen. h. The making of the remark by Allan Robinson offended Clr Clausen. i. The making of the remark by Allan Robinson created a hostile environment. j. In the premises, Allan Robinson breached cl 3.7 of the Code of Conduct by harassing Clr Clausen. Ground 5a (alternative to Ground 5) That on about 23 July 2019, Allan Robinson, while he was a councillor of Council, committed misconduct for the purposes of s 440F(1)(b) of the Act by breaching cl 3.3 of the Code of Conduct, which is an applicable requirement of a code of conduct, by failing to treat Clr Declan Clausen with respect. Particulars Particulars (a)-(f) of Ground 5 are repeated. In making the remark particularised at Ground 5(b), Allan Robinson failed to treat Clr Clausen with respect. In the premises, Allan Robinson breached cl 3.3 of the Code of Conduct. Ground 6 That on about 25 July 2019, Allan Robinson, while he was a councillor of Council, committed misconduct for the purposes of s 440F(1)(b) of the Act by breaching cl 3.1(a) of the Code of Conduct, which is an applicable requirement of a code of conduct, by conducting himself in a manner likely to bring Council into disrepute. Particulars a. As at 25 July 2019, Allan Robinson was a councillor of Council, and the Code of Conduct applied to him. b. Clause 3.1(a) of the Code of Conduct states "You must not conduct yourself in a manner that is likely to bring CN [Council] or other CN officials into disrepute." c. On about 25 July 2019, Allan Robinson sent an email to a journalist from the Newcastle Herald, in which Allan Robinson wrote words to the effect of "I have no problem with poofs. I have one work for me. I'm very good friends with three poofs who I'm proud to say they are my friends." d. Those remarks were reported in an article in the Newcastle Herald dated 26 July 2019, titled "Deputy slams Robbo taunt". e. In making the remark particularised at ground 6(a), Allan Robinson engaged in conduct likely to bring Council into disrepute. f. In the premises, Allan Robinson breached cl 3.1(a) of the Code of Conduct. Ground 7 That on about 26 July 2019, Allan Robinson, while he was a councillor of Council, committed misconduct for the purposes of s 440F(1)(b) of the Act by breaching cl 3.1(a) of the Code of Conduct, which is an applicable requirement of a code of conduct, by conducting himself in a manner likely to bring Council into disrepute. Particulars a. As at 26 July 2019, Allan Robinson was a councillor of Council, and the Code of Conduct applied to him. b. Clause 3.1(a) of the Code of Conduct states "You must not conduct yourself in a manner that is likely to bring CN [Council] or other CN officials into disrepute." c. On about 26 July 2019, Allan Robinson spoke to a journalist from the Guardian. During that conversation, Allan Robinson: 1. repeated the contents of the email particularised at Ground 6(c); 2. made several other homophobic remarks; and 3. said words to the effect of "Why should it be offensive? If you're a fucking poof, you're a poof." d. Those remarks were reported in an article on the website of the Guardian dated 26 July 2019, titled "Newcastle councillor faces calls to quit over allegations of homophobic bullying." e. In making the remarks particularised at ground 7(c), Allan Robinson engaged in conduct likely to bring Council into disrepute. f. In the premises, Allan Robinson breached cl 3.1(a) of the Code of Conduct. Ground 8 That on about 25 February 2020, Allan Robinson, while he was a councillor of Council, committed misconduct for the purposes of s 440F(1)(b) of the Act by breaching cl 3.7 of the Code of Conduct, which is an applicable requirement of a code of conduct, by harassing Clr Nelmes. Particulars a. As at 25 February 2020, Allan Robinson was a councillor of Council, and the Code of Conduct applied to him. b. Clause 3.7 of the Code of Conduct states "You must not harass or unlawfully discriminate against others." c. On about 25 February 2020, photos of a group of councillors in Council's chambers were taken. d. During the taking of the photos, Allan Robinson placed his arm around the shoulder of Clr Nelmes. e. The contact between Allan Robinson and Clr Nelmes was not wanted by Clr Nelmes. f. The contact between Allan Robinson and Clr Nelmes intimidated Clr Nelmes. g. The contact between Allan Robinson and Clr Nelmes created a hostile environment. h. In the premises, Allan Robinson breached cl 3.7 of the Code of Conduct. Endnote 1. Defined in Pt 2 (Definitions) of the Code as Newcastle City Council. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 April 2023