Supreme Court overturns Code of Conduct censure made by Kiama Council

I was very pleased to represent Karen Renkema-Lang against Kiama Municipal Council.

The case involved a Code of Conduct complaint made against then Clr Renkema-Lang. The Council upheld the complaint and censured her.

After filing the matter in the Supreme Court the Council agreed to consent orders that stated the Investigation Report was invalid as there was a reasonable apprehension of bias, and therefore the Council’s resolution to adopt the report was in also invalid.

Media coverage of the Court proceedings can be read via this link.

The full Orders made by the Court are below:

2024/00061606-001 Summons: Karen Renkema-Lang v Kiama Municipal Council trading as Kiama Municipal
Council
Order Case management / Case management orders and directions (Standard) made on 27 May 24 for
proceeding 2024/00061606-001
CONSENT ORDERS
The Court:

1 Grants an extension of time for commencing the proceedings against the Second Defendant, to the date when the Summons was filed, being 15 February 2024.

2 Declares that Resolution 23/350OC, made by the First Defendant on 21 November 2023, is invalid and of no effect.

3 Declares that the final investigation report dated 31 October 2023, made by the Second Defendant, into a complaint made on 16 July 2023 against the Plaintiff, is invalid and of no effect.

4 The matter is remitted to the First Defendant to be determined according to law.

5 The First and Second Defendants to pay the Plaintiff’s costs, as agreed or as taxed.

The Court notes that the First and Second Defendants concede that the Second Defendant’s decision was affected by a reasonable apprehension of bias, is invalid and of no effect, and that it follows that the First Defendant’s Resolution is invalid and of no effect, as articulated by the First Defendant in their written submissions of 10 May, at [16] – [18]

(Attachment ‘A’).

Attachment 'A'; First defendant's articulation of the basis upon which jurisdictional error is conceded, written submissions, 10 May 2024, [16] -[17].

Basis for declaration
16. The plaintiff and the second defendant have agreed that the second defendant’s Investigation Report is invalid. The Council does not seek to be heard in respect of that agreement (being a matter between the plaintiff and the second defendant), save to make the following points relevant to the position as between the plaintiff and the Council.

a. After it was prepared by the second defendant, the Investigation Report was redacted. The redacted material included allegations of impropriety and impartiality by the second defendant arising from his involvement in a previous complaint made in July 2022. That complaint was brought by the plaintiff against the Mayor (ie, involving the same parties as the complaint in these proceedings, but with the roles reversed). The redacted material also contained allegations by the plaintiff that there had been breaches of the Local Government Act by others. There was a concern that disclosure of the redacted material would breach the confidentiality requirements in the Procedures for the Administration of the Code Conduct with respect to the matters and persons involved in the other complaints. The Investigation Report itself stated: “The report has some material redacted due to subsequent allegations and statements asserted by Councillor Lang against public officials. Those matters require procedural fairness and were not made in accordance with Council policy on making complaints. To repeat this information in this report, would therefore further bias any procedural fairness, noting however that the CEO had read the report in full at the time of its submission and has not been advised on any formal complaint at the point of preparing the report.”

The redactions and the Council’s decision not to circulate the annexures to the Investigation Report reflected advice from the Office of Local Government.

b. As a result of the redactions, the other Councillors considering the Investigation Report did not see those parts of the Report that recorded that the second defendant had previously investigated and reported upon a complaint brought by the plaintiff against the Mayor.

c. While it is a matter between the plaintiff and the second defendant, the redacted material would appear to provide an arguable basis for concluding that the Investigation Report was affected by a reasonable apprehension of bias. Whether on this ground or on another ground, it is clear that the second defendant agrees that the Investigation Report was invalid.

17. As a consequence of the above, the Council accepts that its resolution was also invalid. The Council’s resolution was founded upon consideration of the Investigation Report, which was invalid. The plaintiff accepts that the Council relied on the Investigation Report in making the resolution (PS [3]).

18. It is relevant to this conclusion that, although the redactions to the Investigation Report were well-intentioned, they resulted in the members of the Council who considered the resolution being unable to form their own judgment about the plaintiff’s argument (referred to in [16.c] above) that the Investigation Report was affected by a reasonable apprehension of bias. Such consideration might otherwise have had the effect of decoupling the Council’s resolution from the Investigation Report. This is part of the reason why the Council accepts that the procedure by which the resolution was ultimately made miscarried, and hence why the Council agrees that the resolution was invalid and that the Court should make a declaration accordingly.