Background
Snowy Monaro Regional Councillor Andrew Thaler published a series of crude, abusive and humiliating statements on social media about two fellow councillors and two members of the public. The misconduct included repeated personal attacks concerning disability, weight and appearance. Thaler did not dispute that the statements breached the applicable local-government code of conduct.
On 28 July 2025, the Secretary’s delegate suspended Thaler from civic office for three months. On Thaler’s appeal, the New South Wales Civil and Administrative Tribunal set aside the suspension and instead reprimanded him, directed him to stop the misconduct and ordered him to apologise and undertake training. The Secretary appealed, arguing that NCAT had misapplied the totality principle and imposed manifestly inadequate disciplinary action.
The Court’s Holding
The Court of Appeal unanimously allowed the Secretary’s appeal. It held that NCAT erred by treating the disputed misconduct’s characterization as part of the same “single episode” as earlier misconduct as central to the disciplinary outcome. Although previous misconduct and earlier disciplinary action were relevant, the criminal-sentencing totality principle did not translate closely to the statutory disciplinary regime, particularly because the five-year disqualification provision turns on the number of suspension orders rather than their duration. The Court found it unnecessary to decide the Secretary’s separate ground concerning NCAT’s treatment of asserted procedural unfairness.
The Court also held that NCAT’s orders were manifestly inadequate given the serious, sustained and deliberate abuse, Thaler’s awareness of the earlier disciplinary process, and the absence of insight or contrition. It set aside NCAT’s orders and remitted Thaler’s appeal for reconsideration on updated evidence rather than itself determining the appropriate sanction. The Secretary’s suspension decision was stayed for six weeks, and the costs of the principal appeal were remitted to NCAT. The Court dismissed Thaler’s cross-appeal and ordered him to pay the Secretary’s costs of that cross-appeal.
Key Takeaways
- In councillor-disciplinary proceedings, whether several breaches form a “single episode” is not determinative; criminal-sentencing concepts of totality must not displace the statutory disciplinary task.
- A reprimand, cease-conduct direction, apology and training may be manifestly inadequate for sustained and deliberate verbal abuse committed without remorse, insight or contrition.
- Remittal left the final sanction unresolved, while the six-week stay temporarily prevented the Secretary’s suspension order—and any resulting statutory disqualification—from taking effect.
Why It Matters
The decision clarifies how NSW tribunals should assess multiple instances of councillor misconduct under the Local Government Act 1993. Earlier misconduct and sanctions remain relevant, but tribunals must focus on the seriousness and circumstances of the conduct rather than importing an ill-fitting criminal-sentencing framework.
It also underscores that elected office and political disagreement do not excuse abusive or humiliating speech. Councillors remain bound by conduct rules designed to protect collective decision-making, public participation and confidence in local government.