Fix the Faulty Code of Conduct

The Local Government Code of Conduct is supposed to provide a fair, consistent and effective way of dealing with councillor misconduct. Instead, we have an erratic, illogical and expensive system that undermines democratic representation and costs ratepayers dearly.

To be clear, I support a Code that protects public trust in local government by governing impartial and informed decision-making, conflicts of interest, gifts and benefits, and the appropriate use of information and council resources. But that’s not what we have.

Since 2019, over 230 complaints have been lodged under the Code statewide, but only about half of those complaints relate to these core governance issues. The remainder are largely ‘hurt feelings’ allegations that bring the cost of this bureaucratic enterprise to over $580,000 in direct costs alone.

Complaints are assessed by unelected contracted bureaucrats that form panels where members are paid by complaint which creates an obvious structural problem: the system itself has an incentive to keep the churn of complaints going. What should be a serious governance mechanism has become a well-paid retirement hobby and training ground for aspiring adjudicators.

Speaking of training, the Local Government Act requires members to be trained in ‘diversity and inclusion’ but is silent on freedom of belief and expression, conflicts of interest, managing their own biases, contemporary political communication, or even how the provisions of the Code are to be applied.

Unlike courts, where precedent and legal reasoning create consistency, panels effectively operate with free rein. Each panel is free to interpret and apply the Code however it sees fit. The result is predictable: unjust and illogical inconsistency.

As someone who isn’t afraid to say what needs to be said, I’m well acquainted with the Code, and I’ve seen how badly broken it is and how urgently a full rebuild is required.

A review of past decisions shows how widely interpretations and decisions vary from panel-to-panel and defendant-to-defendant. This is most stark in the ‘hurt feelings’ provisions of the Code, like the requirement to “not cause a reasonable person offence or embarrassment”.

Some panels decide if the complainant was a reasonable person or not, others say that approach is not ‘sensible’. Some panels require evidence that offense or embarrassment eventuated, others don’t. Some panels say that offense or embarrassment cannot have been caused as no one was identified, others uphold a breach when no one is named or shown. Some panels say that someone cannot be offended or embarrassed when what they’re offended or embarrassed by is true and correct, others will uphold a complaint regardless. And let’s not forget that for some being ‘offended’ is a daily occurrence.

Further, panels don’t have to apply rules of evidence and complaints have been upheld based on allegations alone, even when a panel has admitted there is no evidence to substantiate the claim.

Another troubling development is panels sanctioning councillors for someone else’s comments on their social media account. Yes, councillors now face penalties for words written by someone else.

To justify this approach, some panels have relied on defamation case law finding that social media account holders are ‘publishers’. But these rulings were developed specifically within the framework of defamation law, which includes legislated safeguards such as early resolution processes and clear legal tests. This pick-and-mix approach means councillors need to man their account 24 hours a day and delete words that might hurt someone’s feelings or shut down critical methods of communicating with the people they represent.

Given the dramatic variations in how the Code is applied, panel decisions are often absurdly illogical. For example, a complaint related to a councillor sharing an image of local Tasmanians and describing them as ‘Nazis’ was dismissed, whereas I was reprimanded and sent to ‘training’ for using the widely known idiom of ‘mind virus’ to describe the social and political movement of wokeism.

Options for fairness outside of the panels are heavily restricted. There is no genuinely accessible way to appeal the merit or lawfulness of a panel’s decision, other than very expensive processes at top courts which are typically out of reach.

The consequences of such a system are significant, especially when panels have immense power. They can suspend councillors for sharing their views and for other people’s words, and the process itself discourages robust debate through lawfare and fear. This should concern anyone who values democratic representation.

The Code was intended to strengthen trust in local government. Instead, the bulk focuses on being the speech police, at significant financial cost to the community.

A credible Code must focus on genuine governance issues, apply clear and consistent legal standards, ensure proper evidentiary safeguards, and provide accessible avenues for review. The ‘hurt feelings’ provisions should be scrapped, with defamation and ant-discrimination law ready to do its job. Most importantly, it should protect robust Australian style democratic debate. Until those reforms occur, the system will continue to do the opposite of what it was designed to achieve.