A NSW Office of Local Government (OLG) circular was published on 2 October 2019, clarifying the penalties available to councils for code of conduct breaches by councillors following the Supreme Court’s decision in Cornish v Secretary, Department of Planning, Industry and Environment  NSWSC 1134.
The OLG has advised councils against imposing a sanction under clause 7.59 of the procedures for a breach of the code of conduct including: mandating the councillor attend training; be counselled for their conduct; be removed from a committee; give an undertaking not to repeat the misconduct or be required to apologise.
It remains open to councils:
* to publish an investigator’s findings and determination in the minutes of council’s meeting
* to formally censure a councillor for a breach
* to refer the matter to the OLG in accordance with the Local Government Act 1993.
Councillors found to have breached the code of conduct may offer voluntary apologies, but resolutions requiring councillors to apologise are open to challenge.
Conduct reviewers will be aware of the implications of the Supreme Court’s decision and should take these into account when making recommendations to councils in their final investigation reports.