Code of Conduct is Broken

I've said this before, and I'll say it again. The Code of Conduct is broken.

I have known this for quite some time but I've recently analysed the flaws more closely and can report that when it comes to one of the most subjective and fundamentally flawed aspects of the Code - 'must not cause any reasonable person offence or embarrassment' - Panels have applied this provision in at least five different ways. That's handy when you have an outcome in mind..... just keep twisting to make the square peg fit.

Some Panels decide whether it was reasonable for the complainant to be offended/embarrassed.

• Burnet – “the Panel accepts that the Complainant was offended or embarrassed” and that the question before the Panel was “whether or not is was reasonable for the Complainant to be offended”.
  

• Dracoulis – Panel upheld as “The Panel agree that is reasonable for the complainant to be offended and embarrassed…”.
  

• Ewin – “the Panel accepts that Ald Briscoe and Ald Denison were reasonably offended and embarrassed.” This could also be interpreted in terms of scale or magnitude of the offence and embarrassment caused.
  

Some Panels decide if the Complainant was a reasonable person.

• Posselt – “the Panel is satisfied that at all relevant times Cr Posselt was a reasonable person”, and that “it may be that Cr Posselt has been more sensitive to some of the online comments of which he complains than another person with a thicker skin might have been, but that does not make him hypersensitive and precious, and thus an unreasonable person…”and that the “subject matter did offend and embarrass him”.

  
  

• Brumby – “Ms Lynch herself told the Panel she was offended and embarrassed… Cr Brumby caused Ms Lynch offense and embarrassment as a reasonable person.”

  
  

• Hamer – upheld as “Cr Hamer had caused offence and embarrassment to her colleague…the Panel was satisfied that all persons caused offence or embarrassment were reasonable persons…”
  

• King – “the Panel finds that the comments caused as reasonable person, namely Mr Booth and one or more members…. offence or embarrassment.”
  

• Posselt… ”..some of them did offend or embarrass Cr Posselt, as a reasonable person…”

Some Panels think deciding whether the complainant was a reasonable person is not “sensible”.

• Dutta… ”.. The relevant part of the Code is poorly drafted. If we were to take it literally, we would be required to undertake an inquiry as to whether or not Dr Yousif is a reasonable person. That would not be sensible. An inquiry into whether or not it was reasonable for Dr Yousif to be offended is also not a useful one ….…”

Some Panels assess whether a reasonable person would have been offended/embarrassed.

• Mansell – where the complaint was upheld against me even though I "had not identified Ms Mansell” apparently a “reasonable person may have interpreted the post as referring to Aboriginal people…” and was “taken in context of other posts made by her in relation to the removal of the statue would have caused as reasonable person office or embarrassment..”
  

• Newsom – dismissed as “would not cause a reasonable person offence or embarrassment…”

Some Panels require evidence that offense and embarrassment was caused in real life while others do not require evidence that offence and embarrassment were caused in real life.

·        Knowles – “Mr Terret did not provide any supporting evidence to suggest that Cr McCullagh was offended or embarrassed..”

·        Newsom – dismissed as “no evidence was provided that Cr Conner’s statements has caused emotional pain and unjust embarrassment to many community members..”

Some Panel decide that offense or embarrassment was not caused, even though the Complainant said they were offended or embarrassed.

·        Terrett – “we cannot conclude on the basis of these findings that Cr Terrett treated Mr Goninan unfairly, caused Mr Goninan offense or embarrassment…”

·        Lohberger –  “the complaint had no caused to be offended or embarrassed...”.

Some Panels say that offence/embarrassment cannot have been caused as no one was identified.

• Lohberger  -Panel dismissed as “….the tweet referred to in the complaint was not directed at any person. In particular, it did not identify the complainant nor any other person.”

  
  

• Dracoulis – dismissed as “…no person has been identified in the Facebook posts….”

  
  

• Manticas – dismissed as “whilst evidence points to Cr Manticas being critical of the Council, in relation to the evidence provided to the Panel, none of his public commentary has singled out Ms Desmond specifically.”

  
  

• Holmdahl “…as the comments related to a third party who was not identified, a reasonable person would not be offended or embarrassed by the comments and that a breach of the Code had not occurred…

Some Panels find that offence/embarrassment was caused even though no person was identified. 

• Mansell – where the complaint was upheld against me even though I “had not identified Ms Mansell” apparently a “reasonable person may have interpreted the post as referring to Aboriginal people…” and was “taken in context of other posts made by her in relation to the removal of the statue would have caused as reasonable person office or embarrassment..”  

• Dracoulis -  dismissed because of “its correctness” and as the information was “technically correct” and “making this correct statement cannot, in the circumstances, cause a reasonable person offence or embarrassment. A reasonable person would simply recognise the correctness pf the statement and not take offence or be embarrassed.”

Some Panels literally disregard evidence that the statements made are correct and uphold that offence and embarrassment was caused even over factually correct statements.

• Dutta – upheld “Cr Elliot attempted to provide evidence to convince us that her assertions were true and suggested for that reason, it was not reasonable for Dr Yousif to be offended by them……”

Other Panels imply that accurate information can still be a breach of the Code. This is very troubling as we cannot have a situation where communicating substantiable facts can be a breach of the Code.

·        Ewin – Panel states that “…assertions that the comments were accurate is not necessarily determinative of the complaint. Accurate or truthful conduct may still be, depending on the circumstances, breach of the Code.”

Some Panels decide that if a matter is ‘inhouse’ then the provision isn’t breached, even when the complainant states they were offended and embarrassed. Other conflict with this approach.

·        Dracoulis – “Mr Sanderson claimed he was offended and embarrassed”… “this matter was ‘inhouse…no evidence of public embarrassment…”

Very concerningly, some Panels seem to lack a basis understanding of ‘free speech’ in Australia, as demonstrated by the below. This is the understanding demonstrated by a Panel which hold significant power to sanction elected representatives.

·        Draclouis – “The Panel recognised the right to free speech, guaranteed in the Australian Constitution.”

This part of the Code needs serious and urgent attention.

Ideally, this section of the Code should be removed and, instead, related to allegations of harm to reputation should be managed through the Defamation Act and allegations of harm related to gender, race, sexuality, political beliefs and other prescribed attributes through the Anti-Discrimination Act.

At minimum, this provision must be reworded and the threshold raised to provide a clear and legally sound test, recognising the political function served by councillors and in light of High Court decisions what is ‘offensive’ in political context. For example, “A Councillor must not act in a way that hypothetical reasonable person would regard as being, in all the circumstances, offensive.”

 Instead of these highly subjective terms that are being abused, these could be replaced with clear and specific provisions, such as:

• “A Councillor must not abuse or threaten any person or group”

• “A Councillor must not defame any person”

• “A Councillor must not incite violence towards any person or group”.

It is also essential that guidance be provided to Panels that:

• “in all the circumstances” is to include all relevant matters, such as the nature of the topic (such as political communication), the setting in which the conduct occurred and the intended recipient and/or subject
  

• that a reasonable person is objective eyes and subjective reactions which may be related to specific individual attitudes or sensitivities and it is not enough that someone feels offended; the test is objective, rooted in the reasonable person standard to ensure that personal sensitivities or overreactions do not prohibit legitimate communications
  

• ‘offensive' is taken to be significant anger, significant resentment, outrage, disgust, or hatred in the mind of a reasonable person
  

• A higher threshold is to be applied for communications related to political and governmental matters and political and public figures, noting that the High Court has made clear that valid features of Australian politics in our representative and responsible government includes insult, invective, emotion, calumny, ridicule and strong criticism, acrimonious exchanges are ordinary incidents of political communication.

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