Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Re referral by Registrar, Aboriginal Land Rights Act 1983 under s 200 of the Aboriginal Land Rights Act 1983, concerning Mr Anderson, a Councillor; Registrar, Aboriginal Land Rights Act 1983 v Anderson [2023] NSWCATOD 159 Hearing dates: 3-4 October 2023 Date of orders: 9 November 2023 Decision date: 09 November 2023 Jurisdiction: Occupational Division Before: I Coleman SC ADCJ, Principal Member Decision: 1. The Tribunal determines that it will conduct proceedings into the matter referred by the Registrar, Aboriginal Land Rights Act on 15 March 2023. 2. The Tribunal finds the respondent guilty of breaching s 152(4)(a), s 152(5) and s 183(1) of the Aboriginal Land Rights Act 1983 (NSW) and of breaching rules 19 and 20 of the Model Rules in Schedule 1 to the Regulations made pursuant to the Aboriginal Land Titles Act 1983 (NSW). 3. Pursuant to s 207(1)(a) of the Aboriginal Land Rights Act the respondent is reprimanded. 4. There be no order for costs of the proceedings. 5. The Registrar's application otherwise be dismissed. Catchwords: ENFORCEMENT- where Registrar, Aboriginal Land Titles Act alleges that director of Aboriginal Land Council has breached provisions of the Act and Regulations made pursuant to the Act- whether Tribunal should conduct proceedings into the referral- whether respondent has breached the regulatory scheme created by the Act- what protective orders should be made against respondent where respondent found guilty of such breaches Legislation Cited: Aboriginal Land Rights Act 1983 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Local Government Act 1983 (NSW) Cases Cited: Chief Executive, Office of Local Government v Cornish [2018] NSWCATOD 110 Director-General, Department of Ageing, Disability and Home Care [2009] NSWCA 102; (2009) 74 NSWLR 523 Deputy Secretary, Local Government, Planning and Policy v Garrard [2021] NSWCATOD 75 Health Care Complaints Commission v Perera [2018] NSWCATOD 112 Kennedy v Thorne (2017) 263 CLR 85; [2017] HCA 49 Kioa v West (1985) 159 CLR 550; [1985] HCA 81 Peeke v Medical Board of Victoria [1994] VSC 7 Plaintiff s10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 86 ALJ 109 Watson v Foxman (1995) 49 NSWLR 315 Category: Principal judgment Parties: Registrar Aboriginal Land Rights Act 1983 (NSW) (Applicant) Troy Anderson (Respondent) Representation: Counsel: A Kaufmann (Applicant) Solicitors: Matthews Folbigg Pty Ltd (Applicant) A Oshlack (Agent) (Respondent) File Number(s): 2023/00085463 Publication restriction: Nil REASONS FOR DECISION Introduction 1. By application filed on 15 March 2023 the Registrar, Aboriginal Land Rights Act 1983 (NSW) (Registrar) sought orders against Troy Anderson pursuant to the provisions of the Aboriginal Land Rights Act 1983 (NSW) (the Act). 2. The Registrar sought that, pursuant to s 200 of the Act, the Tribunal conduct proceedings with respect to the alleged misconduct of Mr Anderson as an officer of an Aboriginal Land Council. Section 200 of the Aboriginal Land Rights Act confers jurisdiction on the Tribunal to conduct and determine Registrar's allegations (s 28(1) Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act)). Mr Anderson resisted the referral of the Registrar's complaint and the substantive relief sought in it. 3. The Registrar's application sought orders that Mr Anderson be reprimanded pursuant to s 207(1)(a) of the Act, that he pay a pecuniary penalty pursuant to s 207(1)(h) of the Act, that the Jali Local Aboriginal Land Council (JLALC) be reimbursed for the loss of unauthorised transfer of funds pursuant to s 207(1)(i) of the Act and that Mr Anderson be disqualified from holding office in any Aboriginal Land Council for a period of up to five years pursuant to s 207(1)(g) of the Act. 4. By agreement between the parties, the Registrar's application that the Tribunal conduct and, if doing so, determine proceedings on the merits were heard together on 3 and 4 October 2023. If the application is accepted, the Tribunal has all of the evidence which is relevant to its determination on the merits. The Tribunal is satisfied that this approach cannot result in procedural unfairness to either party. 5. In closing submissions, and in the light of the evidence which the Tribunal had received, the Registrar sought that, on the undertaking that Mr Anderson not deal, or attempt to deal with the funds of the JLALC prior to 1 July 2025, Mr Anderson be reprimanded, with no order for the costs of the proceedings. The Tribunal understood Mr Anderson to consent to relief being granted in those terms. The Tribunal is satisfied that Mr Anderson understood the terms and effect of his undertaking. It was offered after Mr Anderson was advised by his agent, Mr Oshlack. The Tribunal is satisfied that Mr Oshlack would have explained to Mr Anderson the meaning and effect of his undertaking, and the consequences which could flow if it were breached. 6. On 24 March 2023, Mr Anderson gave an undertaking to the Tribunal in response to the Registrar's application for interlocutory injunctive relief. That undertaking provided that, pending further order, Mr Anderson would not "seek to be appointed as Chairperson or Deputy Chairperson of the Jali Aboriginal Land Council or accept appointment as Chairperson or Deputy Chairperson of the Council, or sign cheques on behalf of the Council, countersign cheques on behalf of the Council and/or transact or cause to be transacted any financial activities on or involving the bank account of the Council". There is no suggestion that Mr Anderson failed to honour his undertaking. 7. Although the proceedings have ultimately become essentially uncontroversial, it is appropriate, if not essential, that the Tribunal provide reasons for accepting Mr Anderson's undertaking and, on the basis of the undertaking, making orders in the terms identified above. Neither party suggests that any agreement between them with respect to the outcome of these proceedings relieves the Tribunal of its obligation to exercise its jurisdiction judicially. 8. The evidence before the Tribunal comprised the Application of the Registrar of 15 March 2023, a Statement of Reasons for that Application, a report prepared pursuant to s 200(3) of the Act, an Affidavit of Rowan Lisson of 25 July 2023 and an Affidavit of the Registrar of 28 February 2023. Mr Anderson swore an Affidavit on 11 September 2023 upon which he relied. The Tribunal also had before it Minutes or draft Minutes of meetings of JLALC held on 17 April 2023 and 28 August 2023, together with the Agenda for the meeting of 17 April 2023. Background 1. The background to the application is not controversial, was set out in the Registrar's report pursuant to s 200(3) of the Act, and reveals as follows: 1. Mr Anderson was elected to the Board of JLALC in 2013.He was re-elected in 2015, and served as a Board Member until 9 October 2019, on which date Mr Anderson was not re-elected. 2. As required by s 65 of the Act, Mr Anderson participated in mandatory Board governance training on or about 25 November 2013 and 4 March 2016. On 10 May 2023, Mr Anderson participated in and completed mandatory Board governance training. 3. At the times which are relevant to the present proceedings, Mr Anderson was the Chairperson of JLALC. As such, Mr Anderson was obliged to uphold and abide by the Code of Conduct and Model Rules of JLALC. JLALC's assets were required to be managed in accordance with JLALC's Community Land and Business Plan 2016-2020, and the provisions of the Act. 4. On or around 18 July 2019 Cedric Hinton (Hinton) prepared and presented an investment proposal (investment proposal) to Mr Anderson, and the then Chief Executive Officer of JLALC, Mikael Smith (Smith). The investment proposal set out an investment scheme to "finance a business transaction in Germany", and stated that, an investment of 100,000 Euros JLALC would yield a return to JLALC of 1,500,000 Euros within 40 to 50 days. 5. On or about 23 July 2019, Mr Anderson, in his position as the Chairperson of JLALC, had authority to access and transfer funds from the JLALC Community Fee Saver Account ending 616. On or about 23 July 2019 Smith and Mr Anderson signed an account payment document authorising payment of the sum of $160,000 of the funds of JLALC to Hinton. 6. On 23 July 2019 the sum of $160,000 was transferred from the NAB account of JLALC ending 616 to an account in the name of Hinton. The "authoriser" of such transfer was stated to be "Mikael Smith". The document was not signed and did not refer to Mr Anderson. The transfer of funds could not have been effected without Mr Anderson's signature on the earlier payment authority. 7. On or about 14 May 2020 the Registrar wrote to Mr Anderson advising him that she was considering whether to refer allegations of misconduct against him with reference to the payment to Hinton of $160,000 of the funds of JLALC to the Civil and Administrative Tribunal (Tribunal). 8. On or about 22 May 2020 Mr Anderson responded to the Registrar's letter. In his letter Mr Anderson referred to his family circumstances at the time the JLALC funds were paid to Hinton. Mr Anderson also stated that Hinton was a person who was "well known to the community", who had worked extensively in aboriginal affairs and the Aboriginal Development Corporation, locally, and was looked up to by most in the community as being a "proper" person, who he believed owned his own business. When the CEO invited him to the Jali members meeting to present the investment opportunity, he was well received by the members who moved a motion for the CEO to investigate his business proposal further". 9. Mr Anderson stated that, in July 2019 he had "total trust" in Smith as the CEO of JLALC, suggesting that he was "instrumental and extremely convincing in setting up the negotiations and the contract after the initial meeting". Mr Anderson further suggested that it was Smith "who assured me that things were in order" with respect to the investment proposal which Hinton had presented at a JLALC meeting. Mr Anderson stated that Smith and Hinton had both assured him that Hinton would be "personally responsible if the investment for some reason did not come through as (Hinton) apparently had the assets to cover any financial loss so Jali would not be at risk". 10. Mr Anderson stated that he told Smith on "several occasions" that a contract needed to be written to record Hinton's promises, and presented to the directors and members and that he was "distracted" by health issues in his family but "still had concerns at the haste in which the CEO was acting". 11. Mr Anderson stated in evidence before the Tribunal that he now realised that he had been lied to during the process on many occasions by both Smith and Hinton. Mr Anderson stated that he was "personally devastated when I realised what had happened". He also stated that he was "extremely sorry" for his "poor judgement". 12. On 27 February 2020 Hinton was charged with the offence of fraud in relation to the $160,000 received by him in July 2019. On 8 February 2021 Hinton entered a plea of guilty to that charge and, on 31 March 2021 was sentenced by Ballina Local Court to a two year custodial sentence, to be served in the community by way of an intensive custodial order. The Court also made an order for Hinton to pay JLALC compensation in the sum of $100,000 by 28 April 2021. 13. Hinton subsequently submitted a payment plan to the Court for approval. The Court approved that plan. There is no evidence before the Tribunal that, whether pursuant to the orders of the Local Court or otherwise, Hinton has repaid any part of the Land Council funds which he fraudulently obtained. 14. The JLALC incurred a loss of $160,000 as a result of the unauthorised transfer of its funds in July 2019. No funds have been recovered from Smith. No proceedings have been taken against Smith for recovery of funds. 1. On or about 21 April 2021 the Registrar referred the allegations identified above to the Tribunal pursuant to s 181K(4) of the Act as it read at that time. On or about 11 May 2021 the Tribunal determined, pursuant to what was then s 199A of the Act, to conduct proceedings into the referred matter. On or about 10 April 2021 the Registrar made an application to the Tribunal for the proceedings to be dismissed on the basis that, as the legislation then provided, the Tribunal lacked power to sanction a "former officer" for misconduct under the previous s 211A of the Act. The Tribunal made orders dismissing those proceedings on or about 16 August 2021 on that basis. 2. In September 2022, Mr Anderson was re-elected to the Board of JLALC and became its Deputy Chairperson. Mr Anderson also became an authorised bank signatory for JLALC. 3. On or about 31 January 2023 the Registrar wrote to Mr Anderson, advising him that she was considering whether to again refer the allegations of misconduct against him outlined above to the Tribunal. 4. On or about 15 February 2023 Mr Anderson replied to the Registrar's letter. In his letter Mr Anderson recorded that the "issue" had been "taken back" to the members of JLALC, and that the members voted "unanimously no to the suspension and that the issue has been resolved and not proceed with any actions, based on all the evidence and representation given". Mr Anderson reiterated his belief that the Directors of JLALC were aware of what had occurred in July 2019, but had not requested that any further action be taken against him "as they felt they had already thoroughly dealt with this issue". Mr Anderson added that the Board of JLALC did not support the Registrar's actions. Mr Anderson did not in his letter dispute the facts upon which the Registrar relied in making her application. 5. At the hearing of the proceedings Mr Anderson was given leave to be represented by Mr Oshlack who, although not a legal practitioner, is an experienced and capable advocate who represented Mr Anderson with skill and vigour. 6. The Tribunal has had the benefit of fair and balanced outlines of opening and closing submissions for the Applicant, and an outline of the submissions for Mr Anderson. Whether the Tribunal should conduct proceedings into the referred matter 1. Section 200 of the Act provides that the Registrar may refer the alleged misconduct of an officer or member of staff of an Aboriginal Land Council for the consideration of the Tribunal instead of taking disciplinary action. Section 28(1) of the NCAT Act enables the Tribunal to exercise the jurisdiction which s 200 of the Act confers on it. 2. It is necessary, if the Tribunal is to hear and determine the Registrar's application on the merits, that it first decides to conduct proceedings into the referred matter. 3. Both parties submitted that, although the Tribunal had not made an order to conduct proceedings into the referred matter, the Tribunal's rejection of Mr Anderson's summary dismissal application on 24 May 2023 implied that the Tribunal had all but formally decided to do so. 4. It is difficult to accept that, having rejected Mr Anderson's summary dismissal application, and done so on the basis on which it did, the Tribunal could consistently decline to conduct proceedings into the referred matter. 5. At a Directions Hearing on 20 September 2023 it was agreed, sensibly in the Tribunal's view, that as both parties wished to have the matter finally disposed of, the hearing on 3 and 4 October 2023 would be concerned with the question of whether the Tribunal decided to conduct proceedings into the referred matter, and if so, its determination of those proceedings. If the Tribunal declined to conduct proceedings into the referred matter, there would be no occasion to engage with the merits of the application. 6. In Deputy Secretary, Local Government, Planning and Policy v Garrard [2021] NSWCATOD 75 Deputy President Cole DCJ accepted at [8], albeit with respect to similar provisions in the Local Government Act 1983 (NSW), that it was sufficient that the Tribunal "do nothing other than to consider the report in the making of the decision as to whether to conduct proceedings", which Her Honour did in that case. The matters raised in the Registrar's report are sufficient in the Tribunal's view to justify the Tribunal accepting the referral and conducting proceedings into the matter. That is particularly so having regard to the evidence with respect to the disbursal of the funds of the JLALC to Hinton in July 2019 which are attached to the Registrar's report. 7. To the extent that Mr Anderson complained that he had not been afforded procedural fairness, the Tribunal understands that complaint to be limited to the decision of the Registrar to refer him to the Tribunal, rather than to anything which has occurred subsequent to the Registrar doing so. 8. The Tribunal is comfortably satisfied that Mr Anderson has been afforded procedural fairness throughout the proceedings in the Tribunal. In circumstances where, with the consent of both parties, the Tribunal has heard evidence which is relevant to both the referral application, and the determination of the substance of the referral application if the Tribunal determines that it will conduct proceedings in the matter, it is difficult to see how any complaint with respect to procedural fairness has substance. 9. Mr Anderson's agent has been able to, and did, extensively cross-examine the Registrar. Documents have been produced by the Registrar on a summons issued on behalf of Mr Anderson, and in response to calls for documents made by Mr Anderson's agent. Nothing asserted on behalf of Mr Anderson in final submissions suggested that he maintained that he had not been afforded procedural fairness (Kioa v West (1985) 159 CLR 550; [1985] HCA 81, Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 86 ALJ 109). 10. Although, as will be seen, the Tribunal is satisfied that the Registrar has established misconduct pursuant to the provisions of the Act, enlivening the powers of the Tribunal to make protective orders with respect to Mr Anderson and the JLALC, in determining to conduct proceedings into the referred matter, the Tribunal has not had regard to those findings, but by reference to the seriousness of the allegations in the referred matter, and evidence in support of them emerging from the Registrar's report. 11. In Garrard, at [48], Cole DCJ found that "On the face of the report, the allegations are sufficiently serious to warrant the conduct of proceedings by the Tribunal". Not insignificantly, in coming to that decision, her Honour took into account [49] the respondent's "long service to his community as a Councillor", which did not "weigh heavily in the decision as to whether the Tribunal should conduct proceedings". Similar observations apply in this case, it not being suggested that, other than for his conduct in July 2019, Mr Anderson is other than a man of good character, a learned and leading member of his community who is otherwise blameless in relation to his membership and/or chairmanship or deputy chairmanship of the Board of JLALC. As will be seen, those matters assume considerable significance in the determination of the referred proceedings. 12. The Registrar's report in this case raises matters which are sufficiently serious in all the circumstances to warrant the Tribunal accepting the Registrar's referral and determining that it will conduct proceedings into the matter. The substantive proceedings 1. The Registrar was cross-examined at some length by Mr Anderson's agent. Although the Tribunal does not criticise him for it, little of the cross-examination of the Registrar by Mr Anderson's agent was directed to the events which are pivotal to the determination of the current proceedings. To the extent that the cross-examination of the Registrar, and submissions on behalf of Mr Anderson sought to establish or imply that there had been a "vendetta" against Mr Anderson by the Registrar, or that he had been "singled out" for action whilst others had not, or that the Registrar had acted other than in accordance with the provisions of the statute, the evidence does not support making findings in any of those terms. 2. It emerged during the course of evidence, however, that the Registrar has not made any efforts to pursue enforcement of the compensation order made against Hinton, or to ascertain the whereabouts of Smith with a view to commencing proceedings against him for the recovery of the monies which Hinton received pursuant to arrangements which Smith appears to have orchestrated. It may be that, as Mr Anderson believes, Smith and Hinton were "in it together". It is understandable in those circumstances that Mr Anderson might feel somewhat aggrieved by the Registrar's application. The Tribunal accepts that attempting to recover monies from Hinton and/or Smith would not necessarily be straightforward, or ultimately be successful. 3. As Counsel for the Registrar explained, although the Act was amended in late 2022 to enable proceedings of the present kind to be brought against former officers of a Land Council, there was submitted to be initial uncertainty as to whether those amendments operated retrospectively. It was further, and properly, submitted that, as neither Hinton nor Smith is currently an officer of an Aboriginal Land Council, there was no need for protective orders to be sought against either of them. Implicit in the evidence of the Registrar, and consistent with the Registrar's duties under the Act, was the acknowledgment that, in the event that either Smith or Hinton were to become an officer of an Aboriginal Land Council, an application would be made for protective orders, and, presumably, orders for compensation against each of them. On the evidence before the Tribunal, it would be regrettable if such applications were not made if those circumstances materialised. 4. Similarly, to the extent that the cross-examination of the Registrar sought to establish that the Registrar had inappropriately participated in or tried to influence the outcome of meetings of the Board of JLALC on 17 April 2023 or 28 August 2023, the evidence does not establish that the Registrar attended those meetings and participated in them in any way which was inconsistent with the Registrar's duties under the Act. The Tribunal accepts the evidence of the Registrar that her attendance, by invitation it appears from the Council, was to assist if required with procedural matters. The Minutes and draft Minutes do not suggest that the Registrar did anything other than act in that manner. Not insignificantly, the number of non-JLALC Board Members attending, and their roles, suggest that, with no disrespect to the Registrar, her involvement in the Board Meetings was quite limited, and limited in the ways the Registrar described in her evidence. 5. The Registrar readily conceded that the draft Minutes of the Board Meeting of 28 August 2023 were probably in error in recording that Mr Anderson voted in favour of a motion to "proceed with the rebuild of 26 residential properties at 50 Bath Street, Wardell, including detailed master planning, engineering design and construction". The draft Minutes of the meeting of 28 August 2023 and the approved Minutes of the meeting of 17 April 2023 suggested that a number of helpful suggestions were made by the Registrar at those meetings. 6. As the Tribunal endeavoured to explain to Mr Anderson's agent on a number of occasions, no part of the Tribunal's decision in this matter turns on any improper motivation, agenda or intention on the part of the Registrar. The focus is, and has always been, on whether Mr Anderson is guilty of misconduct pursuant to one or more provisions of the regulatory scheme created by or pursuant to the Act and, if so, what protective orders ought be made pursuant to the provisions of the Act. That in turn involves careful consideration of Mr Anderson's evidence, including his evidence in cross-examination before the Tribunal, the circumstances revealed by documents created at the time of the transaction which gave rise to the referral application, Mr Anderson's character and history as a member of the Board of JLALC and, by reference to those matters and any training or education which Mr Anderson has successfully undertaken since July 2019, the likelihood of his being a party to a transaction of the kind which undoubtedly occurred in July 2019 if he is again in a position to do so. 7. In view of the orders sought by the Registrar, which relate solely to financial matters, directly and indirectly, and Mr Anderson's agreement with such orders, the ambit of the matters which the Tribunal is required to determine has been significantly limited. Lest there be any doubt, the Tribunal would have been comfortably satisfied to make the findings which it will without Mr Anderson's concessions in that regard. Mr Anderson's concessions, however, are taken into account in his favour both in terms of his insight into the need for vigilance as a member of the Board of JLALC and with respect to his contrition over what he was party to in July 2019, and its financial consequences for his community. 8. Mr Anderson gave evidence and was cross-examined closely but with commendable sensitivity and restraint by Counsel for the Registrar. The Registrar's outline of closing submissions with respect to Mr Anderson's evidence aligns almost entirely with the Tribunal's impressions of Mr Anderson's evidence, and findings with respect to it. Mr Anderson is undoubtedly a senior, learned and respected member of his community. The Registrar conceded, properly, that Mr Anderson's "genuine contrition in giving his evidence orally was palpable from his demeanour". Equally properly, the Registrar conceded that, when confronted with inconsistencies in his evidence, Mr Anderson readily accepted those inconsistencies. Perhaps the best illustration of Mr Anderson's candour with the Tribunal is found in his response to the question by Counsel for the Registrar to the effect that Mr Anderson's explanation for the events of July 2019 in some instances did not "make a lot of sense", to which he replied that his explanation "made no sense at all". 9. Mr Anderson reiterated in his oral evidence that he had been "set up" by Hinton and Smith. Although undoubtedly articulate and intelligent, Mr Anderson presented as a man with limited commercial experience or expertise and, at least at July 2019, a willingness to trust people in the positions which Hinton and Smith occupied, financial adviser and Council CEO respectively. The Tribunal has little difficulty accepting the substance of Mr Anderson's explanation for his role in the misappropriation of JLALC funds as a result of the proposal devised by Hinton and facilitated by Smith. Were this a criminal sentencing matter, those matters would weigh heavily in the Tribunal's decision. The Tribunal takes them into account, but, as submitted by Counsel for the Registrar, there are other relevant considerations given that the protective nature of jurisdiction reposed in the Tribunal by the relevant provisions of the Act. In exercising its jurisdiction, the Tribunal must be mindful that these are not purely inter partes proceedings. There is also a public interest in their subject matter. The public interest in this case includes ensuring that public funds which are made available to Land Councils are utilised for the benefit of the communities they serve, and are not dishonestly or carelessly misapplied by Land Council office holders. 10. In neither his written nor oral evidence did Mr Anderson ever deny the facts with respect to the disbursement of JLALC funds in July 2019. Nor did he seek to rationalise or trivialise what he had been party to. Mr Anderson readily, and properly, conceded that his conduct had been "careless". 11. The Registrar submitted that there were some "troubling aspects" of Mr Anderson's evidence in relation to how the transfer of funds came to occur. The Tribunal accepts that there were some inconsistencies and contradictions in the various accounts given by Mr Anderson. Consistent with experience and the authorities, the probabilities are that Mr Anderson's most reliable accounts of the transaction were those given closer in time to when they occurred than the account which he provided in September 2023 (Watson v Foxman (1995) 49 NSWLR 315). That said, the Tribunal does not find that Mr Anderson manufactured or otherwise tailored his evidence in September 2023 to improve his case. 12. The Registrar, properly, recorded with respect to the inconsistencies in Mr Anderson's statements over a period of more than three years "appeared to be a witness doing his best to explain events of more than 4 years ago". That concession accords with the Tribunal's findings with respect to Mr Anderson's evidence. Consideration 1. Largely for the reasons advanced by the Registrar in the outline of opening submissions provided on her behalf, the Tribunal finds that the transfer of $160,000 to Hinton for the purpose described in the investment proposal was not in accordance with the Act or the Community, Land and Business Plan and was thus contrary to the obligations imposed on Mr Anderson by s 152(5) of the Act. 2. The Tribunal further finds that the transfer to Hinton was made in breach of the provisions of s 152(4)(a) of the Act and Regulation 101 to the Act, which was then Regulation 91. These provisions provided that money to the credit of the JLALC account could only be invested in ways authorised by the Regulations. The Regulations did not, in 2019 or now, contain any provision allowing investment overseas as per Hinton's investment proposal. 3. The Tribunal further finds that Mr Anderson's conduct and failure to notify the Board of the JLALC or the New South Wales Aboriginal Land Council as soon as practicable after the transaction of July 2019 amounted to breaches of clause 19 and 21 of the Model Rules in Schedule 1 to the Regulations made pursuant to the Act. 4. Finally, and contrary to the provisions of s 183(1) of the Act (s 176(1) of the Act prior to the 2022 amendments), and the Code of Conduct in Schedule 3(9) of the Regulations, Mr Anderson did not exercise reasonable or due care and skill in performing his functions in relation to the transfer of $160,000 to Hinton. 5. In those circumstances, the Tribunal's jurisdiction to make protective orders pursuant to the provisions of s 207 of the Act is enlivened. In Chief Executive, Office of Local Government v Cornish [2018] NSWCATOD 110, albeit a case concerning the Local Government Act, it was accepted that the jurisdiction of the Tribunal in this matter is at least in part protective of both the public and of the maintenance of high standards in the ranks of the particular occupation, that important but indirect effects of a disciplinary order include emphasising the public interest in the maintenance of high standards and the maintenance of public confidence in standards of conduct. It was submitted by the Registrar, correctly in the Tribunal's view, that regard should be had to the objects and purposes of the Act and the protective purpose of its disciplinary provisions. 6. In the course of discussion with Counsel during final submissions, the Tribunal asked whether considerations of specific and general deterrence were relevant to the exercise of the Tribunal's discretion pursuant to s 207. The Tribunal does not understand it to be in dispute that those considerations are relevant, as would usually be the case where the public interest encompasses the matters which were accepted as being relevant in Cornish. 7. In determining the appropriate protective orders, the following matters assume considerable significance. Mr Anderson was "careless" in the discharge of his duties as a Board Member of JLALC with respect to the transfer of funds to Hinton in July 2019. Mr Anderson did not benefit and was never likely to benefit from the transaction. Mr Anderson was naïve, and overly trusting. Given his personal circumstances at the time, and the positions occupied by Hinton and Smith, Mr Anderson was in a position analogous to a person under a "special disadvantage" in the sense in which that term is understood in equity. Hinton and, arguably, Smith unconscientiously took advantage of Mr Anderson's circumstances in July 2019 to procure a transaction which Mr Anderson knew was wrong from which Hinton undoubtedly benefited (Kennedy v Thorne (2017) 263 CLR 85; [2017] HCA 49). Mr Anderson is a man of good character and, save for the events of July 2019, has an unblemished record as a member of the JLALC Board. Mr Anderson is a learned and respected member of his community. The fact that, after he confessed his misconduct to them, the members of the Board of JLALC had sufficient confidence in Mr Anderson to reappoint him to the JLALC Board in late 2022 is of some, but limited relevance. 8. Mr Anderson expressed genuine and unqualified remorse for his misconduct and its consequences for his community. Importantly, Mr Anderson has, on 10 May 2023, successfully completed mandatory governance training in accordance with a mandatory governance training guide as required by the Registrar. Having regard to the unchallenged evidence of Mr Lisson, the matters of financial governance covered by the course were extensive, even if their coverage was not intensive. 9. Consistent with the exercise of other protective jurisdictions, the "overwhelming emphasis" is on the protection of the public (Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523). Protective orders must be proportionate to the risks to the public which they are intended to protect against. The Tribunal's orders should not be less stringent than the evidence suggests to be appropriate. Equally, they ought not be excessive or punitive. To fail to reprimand Mr Anderson for his misconduct in July 2019, notwithstanding all the mitigating circumstances surrounding that conduct to which the Tribunal has referred, would send an unfortunate message to the community, to Mr Anderson, and to others who might be tempted in the future to engage in such misconduct. 10. A reprimand is more than a token sanction or "trivial penalty" (Peeke v Medical Board of Victoria [1994] VSC 7). The Tribunal's decision is in the public domain. Members of his community and other land councils are likely to become aware of Mr Anderson's case. Should Mr Anderson again breach his duties to a land council, having previously been reprimanded would not help him in any disciplinary proceedings which might result from such breach. In disciplinary proceedings involving health professionals, it has been accepted that imposing a reprimand may demonstrate that a practitioner is sanctioned for abrogating responsibility through "carelessness and/or inattention to detail", acts as a deterrent to other practitioners to engage in like conduct and "upholds and reinforces the standards" expected of persons in that profession (Health Care Complaints Commission v Perera [2018] NSWCATOD 112). 11. Importantly, Mr Anderson agreed at the conclusion of the hearing that he did not oppose the undertaking which he gave to the Tribunal on 24 March 2023 being extended until 1 July 2025. That concession was both appropriate and supportive of the favourable findings with respect to Mr Anderson's insight and contrition recorded earlier in these reasons. 12. In all the circumstances, the Tribunal is comfortably satisfied that orders as ultimately sought by the Registrar are appropriate. Orders 1. Upon the undertaking of the Respondent Troy Anderson through his agent and confirmed by him before the Tribunal that until 1 July 2025 he will not seek to be appointed as Chairperson or Deputy Chairperson of the Jali Aboriginal Land Council or accept appointment as Chairperson or Deputy Chairperson of the Council or sign cheques on behalf of the Council, countersign cheques on behalf of the Council and/or transact or cause to be transacted any financial activities on or involving the bank account of the Council" the Tribunal orders that: 1. The Tribunal determines that it will conduct proceedings into the matter referred by the Registrar, Aboriginal Land Rights Act on 15 March 2023. 2. The Tribunal finds the respondent guilty of breaching s 152(4)(a), s 152(5) and s 183(1) of the Aboriginal Land Rights Act 1983 (NSW) and of breaching rules 19 and 20 of the Model Rules in Schedule 1 to the Regulations made pursuant to the Aboriginal Land Titles Act 1983 (NSW). 3. Pursuant to s 207(1)(a) of the Aboriginal Land Rights Act the respondent is reprimanded. 4. There be no order for costs of the proceedings. 5. The Registrar's application otherwise be dismissed. 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: 09 November 2023