Sydney councillor disciplined for posting Herald article on Facebook page wins court fight

A councillor who was censured by her own council after sharing a Herald article about a controversial council program on her Facebook page has won a Supreme Court challenge against the decision.

Independent City of Parramatta councillor Kellie Darley challenged the disciplinary action, which was the result of a lengthy investigation into whether she broke the council’s code of conduct by sharing confidential information.

In a judgment on Friday morning, Acting Justice Monika Schmidt found the council’s general manager, Gail Connolly, had not complied with the requirements of the Local Government Act, including by withholding key documents from councillors before they voted to censure their colleague.

The findings mark an end to a nearly two-year saga that began when the City of Parramatta entered into a sponsorship agreement with the Parramatta Eels rugby league team. The Herald revealed a secret report written for councillors showed the deal could have cost the council up to $2.4 million.

Darley, who was among several councillors opposed to the deal, shared the article with her own commentary on Facebook, but a complaint was made to the council because the story included information deemed confidential. Sharing confidential information is a breach of the councillors’ code of conduct.

The council appointed an “independent conduct reviewer” to investigate. In July 2024, the reviewer found Darley had breached the code of conduct in two of four incidents that were investigated, and recommended the council censure her.

Improper process

But Schmidt found a council complaints co-ordinator “did not confine herself to the role of conduct co-ordinator” and intervened in the writing of the investigation.

Emails seen by the court showed the co-ordinator requesting the investigator not send his draft report to Darley until the co-ordinator had reviewed and responded to it, and then “effectively making submissions” about why aspects of the draft should be “reconsidered”.

The co-ordinator asked the reviewer to change the final report as well, including changing his recommendations that Darley be censured “in respect of two [of four] allegations, to a recommendation that she be censured”.

Schmidt found that when councillors were given the reviewer’s report, Connolly “improperly” did not provide them with key attached documents, “which they ought to have been provided with to consider”.

Schmidt quashed both the findings of the conduct review and Darley’s censure, “given the errors into which I am satisfied the council, its general manager, its complaints co-ordinator and its conduct reviewer each fell”.

Schmidt found the council “was wrong in defending its own decision as it did”, based on the legal principle that decision-makers should not defend their actions in court in order to ensure their future impartiality.

Darley said she felt vindicated by the findings, after “my integrity was questioned”.

“This is very serious for the council,” she said. “Not only did they make fundamental errors, not only did they give incorrect advice, not only did they withhold information, but they actively defended their position, prolonged the court case and are likely to have cost ratepayers almost the same as what’s been wasted on sponsoring the Eels.”

Darley estimates the total cost of the case to be about $1 million. Schmidt ordered the council to pay Darley’s costs, but the two parties will discuss this later. “We could have reopened Epping Pool with that money.”

Connolly did not respond to questions but referred the Herald to the council’s media officers, who said it was “currently reviewing the court’s decision”.

The Sydney Morning Herald has opened a bureau in the heart of Parramatta. Email parramatta@smh.com.au with news tips.