Sullivan v Okeno [2013] NSWADT 12

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Sullivan v Okeno [2013] NSWADT 12 Hearing dates: 17 December 2012 Decision date: 21 January 2013 Before: Judge K P O'Connor, President P H Molony, Judicial Member M von Kolpakow, Non-Judicial Member Decision: The application is dismissed Catchwords: LOCAL GOVERNMENT - Civic Office - Whether elected councillor disqualified - 'Employee' - 'Office or Place of Profit under the Council' - Interpretation - Circumstances - Held not disqualified - Application dismissed - Local Government Act 1993, s 275(2) Legislation Cited: Administrative Decisions Tribunal Act 1997 Local Government Act 1993 Cases Cited: Hyams v Victorian Electoral Commissioner & Buchanan [2003] VSC 156 In Re Webster [1975] HCA 22; (1975) 132 CLR 270 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales on behalf of Hookey v State of New South Wales (Department of Health Mental Health Review Tribunal) [2012] NSWIRComm 13 Sykes v Cleary [1992] HCA 60; (1992) 176 CLR 77 Williams v Commonwealth of Australia [2012] HCA 23 (20 June 2012); 86 ALJR 713 Category: Principal judgment Parties: James Sullivan (Applicant) Rosmairi Okeno (Respondent) Representation: In person (Applicant) In person (Respondent) File Number(s): 123288

reasons for decision 1Elections for the Lake Macquarie City Council were held on 8 September 2012. On 20 September Ms Rosmairi Okeno was declared elected in the West Ward. 2Mr James Sullivan applied on 9 October 2012 to the Tribunal under s 329 of the Local Government Act 1993 for an order dismissing her from civic office. He contended that she was disqualified, referring to s 275(2) which provides: (2) A person is disqualified from holding civic office on a council if he or she is an employee of the council or holds an office or place of profit under the council. 3Mr Sullivan contends that Ms Okeno is disqualified by her work as the Town Centre Coordinator for Morisset under a Town Centre Program funded by the Council. 4Disqualification provisions expressed in terms similar to s 275(2) are a familiar part of Australian electoral law. Their origin lies in the English Act of Settlement: see further, In Re Webster [1975] HCA 22; (1975) 132 CLR 270 at [12]-[13] per Barwick CJ; Sykes v Cleary [1992] HCA 60; (1992) 176 CLR 77 esp at [12]-[13] per Mason CJ, Toohey and McHugh JJ; and Hyams v Victorian Electoral Commissioner & Buchanan [2003] VSC 156 (Gillard J). 5The Tribunal convened at Newcastle on 17 December 2012. The Tribunal was constituted by three members of the General Division, as required by Schedule 2, cl 5A of the Administrative Decisions Tribunal Act 1997. Mr Sullivan and Ms Okeno each appeared without representation. 6The material before the Tribunal comprised: the applicant's affidavit sworn 14 November 2012; various documents issued by the Council, dealing with Town Centre Program funding and related arrangements (they are marked as exhibits 'A1' and 'R1'). Ms Okeno gave sworn evidence at hearing, and was cross-examined by the applicant.