Newcastle Citizens for Local Democracy

Preliminary matters:

1) Changes to nomenclature and numbering:
The proposed changes to the nomenclature of the Parts of the Code (i.e., from numbers to letters) are supported. Using letters to distinguish the three higher-order structural divisions of the Code (the Parts) from the numbering used for the lower-order section headings and paragraphs improves navigational and reference clarity.
For the same reasons, the introduction of numbered paragraphs throughout the Code (including the Context, Definitions, and Purpose sections) is also supported.

2) Section 1.3:
I have no particular objection to the inclusion of this statement, but a number of the terms in it are tautological (e.g., “ethically” and “honestly” and “with integrity”), whilst it omits the key term: “transparently”.

Recommendation 1:
That the word “transparently” be included in section 1.3.

The role of councillors and the application of the Code:

1) Section 1.6
This section of the draft Code (taken directly from the Model Code) is loosely based on section 232(2) of the Local Government Act. However, it mentions only the two roles contained in the first and second dot points of that section of the Act (and then only partially), omitting entirely the function in the third dot point, which states the right and responsibility of a councillor “to facilitate communication between the community and the council”. Whilst this Part of the Code is not enforceable, this is nonetheless a major deficiency in the Model Code (and, hence, in Newcastle’s), and permeates the ensuing document. It is reflected in the general preponderance (and consequent imbalance) in the Code of restrictions placed on councillors for which there are no equivalent or reciprocal provisions for council staff, and especially the restrictions it purports to place on councillors, operating in their capacity as elected representatives, in communicating with the community. This deficiency underlies the proposed changes in Newcastle’s draft Code, which seek to impose significant further restrictions on the rights of councillors (acting as elected representatives) to facilitate communication between the community and the council.
Clearly, the Model Code must be changed here to more accurately reflect the statutory function of councillors, acting as elected representatives. Until then, however, Newcastle should at least remedy this deficiency by including in its own Code the full range of statutory functions identified in the role of councillors in section 232(2) of the Act. In my view, the most effective way to do this would be for the Code to simply state the words of the Act itself, since the language of that section is in relatively plain English. However, this would result in having to alter the words of the Model Code, which is beyond council’s legal authority. Council should therefore simply integrate this point into the relevant sentence.

Recommendation 2:
That the first sentence of section 1.6 of the exhibited draft Code be amended to: “The role of a Councillor as an elected person requires Councillors to represent the interests of the community and provide leadership, and to facilitate communication between the community and council”.

2) Section 1.8:
This new section (and section 1.7) attempts to deal with – and clarify - the difficult issue of when and how the Code applies to councillors acting in their capacities as private citizens. However, this attempt - as currently drafted – is unsuccessful.
Firstly, in their current form, the two sections are logically in conflict. Section 1.7 argues that the role of a councillor is a 24/7 role, and that councillors are usually seen as acting in their councillor role, even when they are not doing anything related to their council position. The argument of this section leads to the (unstated) logical conclusion that a councillor is always subject to the Code of Conduct. However, section 1.8 states that “the Code does not apply when it is clear that a councillor is acting in their capacity as a private citizen provided that the Councillor’s conduct does not breach the key principles of the code, and thereby bring the council into disrepute or cause a loss of confidence in the integrity of local government”. This is highly confusing, since:

• the second section of the sentence (from the words “provided that...”) provides such a substantial qualification to the opening statement (that the Code does not apply when a councillor is acting as a private citizen) as to render it effectively worthless.

• the second section of the sentence refers to the importance of councillors not breaching “the key principles of the code” when acting as private citizens. This presumably refers to the “Key Principles” (Section 4) of the Code, which is part of the non-enforceable component of the Code (Part A of the draft Code). Thus, this Section places the highest importance on councillors observing a non-enforceable part of the Code. If it really is of such importance for councillors (when acting in their capacity as private citizens) not to breach the Key Principles of the Code, then the Key Principles should be enforceable. This submission does not support this approach, since it favours the replacement of the current wording with alternative wording, for reasons stated elsewhere. However, if this section is to remain as is, and if it is to have any genuine weight as a means of influencing the relevant conduct, it should refer to relevant provisions of the code that are enforceable.

• the statement in s.1.8 that “the Code does not apply when it is clear that a councillor is acting as a private citizen” is clearly inconsistent with specific provisions within the Code itself. For example, section 22 of the Code places certain obligations on councillors when they are acting in their capacity as private citizens in their dealings with council. In these circumstances, these provisions of the Code apply whether or not it is clear that a councillor is acting in their capacity as a private citizen: in fact, it is an obvious intention of these provisions to make that distinction clear, and to require that a councillor act in a certain way in circumstances in which they are clearly acting in their capacity as a private citizen.

The reality in which councillors must operate is such that any circumstances in which they are involved (whether acting as private citizens or not) could (and often will) bring their conduct within the purview of the Code, and it would be better for the Code to simply forewarn councillors of this, rather than to offer them false solace with a provision such as the current wording of s.1.8 of the draft, which is contradictory and confusing, and likely to be unworkable.
This submission favours a more general statement, such as “Councillors must be mindful that, because what they do and say may be seen by others as related to their role as a councillor even when they are acting as private citizens, this Code might apply to any circumstances in which it could be perceived that a councillor’s conduct breaches one or more of its provisions.” Such a statement would follow more logically from the argument in section 1.7, would be more consistent with the approach taken in the Code itself in relation to certain circumstances in which councillors act in a private capacity, and would more accurately reflect the reality in which councillors now operate.

Recommendation 3:
That section 1.8 of the draft Code be replaced with the following statement:
“Councillors must be mindful that, because what they do and say may be seen by others as related to their role as a councillor even when they are acting as private citizens, this Code might apply to any circumstances in which it could be perceived that a councillor’s conduct breaches one or more of its provisions.”

Sensitive Information:

1) General objection to this category of information:
This submission raises a strong objection to the inclusion into the Code of Conduct of the new category of “sensitive information” identified and defined in Section 2.1.21, and to the definition and application of that category within the draft Code. It regards the proposed system of information control centred around “sensitive information” in the draft Code as both practically and valuatively flawed.
The definition provided in the draft Code covers any “information which is not categorised as ‘confidential’ information under the Act, but which may have a detrimental affect [sic] on council or on persons associated with council if placed in the public domain without explicit authority of the General Manager”. The definition states that this category includes “internal memorandums and internal discussions and emails”.
The lack of any definition or explanation of exactly what constitute “internal memorandums and internal discussions and emails” leaves the precise scope of what might be regarded as “sensitive information” unclear. Is an email exchanged between two or more councillors an “internal email”? The term “internal discussion” is particularly open to wide interpretation. Likewise, who would determine whether information “may have a detrimental effect on council”, and how and on what grounds would this determination be made in particular circumstances? These matters are not covered in the definition or elsewhere in the Code, leaving in doubt key aspects of the proposed system of information control associated with “sensitive information” in the draft Code. Quite aside from any valuative concerns associated with the concept of “sensitive information” in terms of public interest and public right to know considerations, and in terms of the role of elected representatives in a representative democracy, the definitional and procedural gaps opened up by this definition present major unanswered questions about the practicalities of the way that the system would operate. If they were adopted, these deficiencies would necessitate the need for major new inclusions in the Code in the near future.
However, even if these operational issues were resolved, both the definition of “sensitive information” and the new proposed restrictions associated with it in the draft Code represent an unacceptable fettering of the role of elected representatives, and of community representatives on council committees. This definition, and its associated restrictions, fails to adequately distinguish between the role of a council officer, and that of elected representatives, or of community representatives on council committees.
The way this category is defined in the draft Code could be construed as effectively including any information that has not already been made public by the General Manager. The reference in the definition to information that “may have a detrimental affect [sic] on council” is particularly pernicious to public interest considerations, and is entirely at odds with the spirit of freedom of information provisions and public right to know principles enshrined in relevant legislation (e.g., section 12(8) of the Local Government Act; section 59(A) of the Freedom of Information Act; and section 15(d) and (e) of the new Government Information (Public Access) Act, 2009). All these Acts contain provisions to the effect that the fact that a decision to disclose information might cause embarrassment or a loss of confidence, or that it might be misinterpreted or misunderstood by someone (i.e., that it might be detrimental to the agency), must not be taken into account by an agency in any decision about the public disclosure of information. The fact that precisely such a consideration is at the very core of the definition of “sensitive information” in the draft Code is a significant indicator of how far outside the bounds of acceptability this aspect of the draft Code really is.
References to “sensitive information” have been incorporated throughout Section 34 (“Use and Security of Confidential Information”) of the draft Code, so as to place significant new restrictions on councillors providing information to the public. Hence, section 34.2.1 places on council officials (including councillors) the obligation to “protect ... sensitive information” and section 32.2.2 includes a new requirement to “only release...sensitive information with express authority of the General Manager”.
The grammatical logic of the proposed definition asks us to accept the dubious proposition that the General Manager’s authorisation of information that might otherwise be detrimental to council would – by virtue of such authorisation – be somehow rendered not so. This is either absurd or insidious. Clearly, if the release of information is going to be detrimental to the council, it will be so, irrespective of whether the General Manager authorises it or not – unless, of course, the General Manager were to intervene in some way either to actually prevent the disclosure of the information, or to modify the content of the information, or the context in which it was released, and thereby avoid or mitigate the detrimental impact on council. This may serve the council’s and the General Manager’s interests, but it is inimical to the public interest. It would have the effect of undermining at least one of the important checks and balances that elected representatives provide in our system of democratic governance, and would give monopoly control over the flow of information between the council and the community to an unelected public servant. At the highest level of consideration, a measure that channels information through a single gatekeeper in this way undermines the Separation of Powers that is crucial to a healthy democracy. The “sensitive information” approach gives far too much weight to the increasingly discredited managerialist view that councillors owe their primary duty, loyalty and accountability to the council’s administration. There is no support for such a view in the Act, or in the theory or general principles of representative democracy that underpin Australia’s system of government. Nowhere does the Local Government Act state or imply that councillors are – or should be - accountable in this way to the council administration or the General Manager. In fact, as section 232 of the Act confirms, the primary accountability of councillors is to the community, and the Act gives councillors the specific role to “represent the interests of the residents and ratepayers”, and “to facilitate communication between the community and the council” (s.232(2)). To the extent to which the provisions in the draft Code related to “sensitive information” purport to have the authority to restrict councillors in carrying out this role, they may well be ultra vires. Even if they are not technically illegal, these provisions offend a fundamental principle of representative democracy (the right and responsibility of elected representatives to provide relevant information to the public in the public interest), and should be rejected by any councillors who understand and value their role as elected representatives. If these distasteful provisions are accepted, responsible councillors should, to the extent that the provisions purport to be able to limit their ability to represent the interests of the community and to facilitate communication between the community and the council, openly disregard them, in order to uphold the more important principles that these provisions would violate and undermine.
Moreover, neither the council report that accompanied the draft Code, nor the documentation on public exhibition (at least those available on the website) provides any reason for introducing these draconian information control measures. It is difficult to provide further meaningful comment on these provisions in the complete absence of any attempt to demonstrate or argue the need for them. Suffice to say that I have observed instances in other councils where administrations have attempted information control measures aimed at censoring councillors, and in a number of instances this has led to ongoing – and still unresolved - conflict between councillors and general managers. The “sensitive information” system (and other information control measures) proposed in the draft Code is highly likely to have a similar effect in Newcastle. Newcastle would be well advised to avoid embarking on this pathway to future conflict.
This submission recommends that all references to “sensitive information” included in the draft code be deleted, and that instead the draft Code be amended to acknowledge and reinforce the important role that councillors play, as elected representatives, in providing information to the community.
This is not to say, of course, that this role has no limitations. The Act places a significant number of restrictions on councillors in relation to the disclosure of information (e.g., s.10 and s.646), and councillors must also adhere to common law restrictions related to confidentiality, as any other person in society must. It is also reasonable for the General Manager (or other authorised council officer) to inform councillors in the particular (and presumably limited) instances when a councillor is provided with information that would not be released even if it were subject to a request under one of the statutory systems available to the public for access to government information. These systems will soon be streamlined, when the Government Information (Public Access) Act becomes operational early next year, and s.12 and the current FOI legislation will no longer operate. Importantly, such a system would not apply to “sensitive information” as it is currently defined in the draft Code, because the new legislation retains the provisions regarding the inappropriateness of considering the potential detrimental impact on an agency (in terms of embarrassment or loss of confidence, or misinterpretation and misunderstanding of information) in relation to disclosure requests.
It is reasonable for the Code to remind councillors of their obligations in relation to their use of information, but, in order to strike an appropriate balance, the Code should also affirm that councillors must be able to carry out their role as elected representatives on the basis of a presumption of a public interest consideration in favour of disclosure in relation to any public interest information that they acquire in the course of their civic duties. It should be up to councillors to make (and to be accountable for making) reasonable judgements regarding the appropriateness of disclosing information in the public interest. If councillors err in such judgements, they should be subject to the appropriate complaint and disciplinary processes under the Code, just as they now are when they make judgements about conflict of interest matters.

Recommendation 4:
That all references to “sensitive information” in the draft Code be removed, and that words to the following effect be included in the Code, in relation to the right of councillors to disclose information:
Councillors have a statutory role under s.232 (2) of the Local Government Act to "facilitate communication between the community and the council". Where a councillor is provided with information in the course of his or her civic duties, the information can be disclosed to any person by that councillor if a reasonable and informed person would perceive that its disclosure would be clearly in the public interest, unless the information:

1. is or would be confidential information under the provisions of any Act, regulation, or relevant legal instrument, OR

2. is clearly and specifically identified by the General Manager (or other authorised council officer) as information that would not be made available to a member of the public if it were subject to a request under either section 12 of the Local Government Act or the Freedom of Information Act (or, when it becomes operational, the Government Information (Public Access) Act).
In such a case, councillors must be advised in writing of the specific grounds on which the information would not be made available to a member of the public, under the same criteria and in the same form as would apply to an application for access to that information under the Government Information (Public Access) Act; OR

3. is otherwise of a nature that disclosure would be likely to be regarded as a breach of confidentiality by a court.

Councillors are responsible and accountable for any judgements they make or actions they take in relation to the disclosure of information. In circumstances where a councillor is unsure about the appropriateness of disclosing information acquired in the course of their civic duties, the councillor may seek the advice of the General Manager, or other authorised person.

The key elements of this disclosure regime for councillors, as contrasted with that proposed in the exhibited draft, are that:

• it recognises, respects and reflects the statutory role of councillors, acting as elected representatives, to facilitate communication between the community and the council, to represent the interests of residents and ratepayers, and to provide leadership and guidance to the community

• it proceeds from the presumption of a public interest consideration in favour of disclosure, rather than against it (and is therefore consistent with freedom of information and public right-to-know principles)

• it prioritises the public interest above the consideration of whether disclosure of information might be “detrimental to council” (and is therefore consistent with freedom of information and public right-to-know principles),

• it reinforces that councillors have certain statutory and common law obligations in relation to the disclosure of information,

• it gives the General Manager (and other authorised council staff) the proactive responsibility to inform councillors of any legitimate restrictions on the disclosure of information provided to them in the course of their civic duties, and the legitimate reasons for these restrictions, and

• it accords to councillors the appropriate level of responsibility (using the same test as they must currently apply in the case of conflict of interest matters) in making judgements as to the appropriateness of disclosing information that has not already been made available to the public.

Inappropriate interactions (Section 30)

The inclusion of new provisions relating to access to information by councillors under the heading “Inappropriate interactions” (s.30) is highly inappropriate, and unfortunately (and, presumably, inadvertently) reinforces the offensively pervasive view in the code (and particularly in the proposed changes) that there is something inherently inappropriate about councillors seeking or using information. These access to information provisions (ss. 30.3 to 30.6) should be transferred to the section of the code that specifically deals with access to information matters (i.e., s.31). If necessary, a single new sub-section could be incorporated into s.30, (to amend the current 30.3) to the effect that “The General Manager is responsible to council for the performance and direction of all staff and the day-to-day management of council. It is therefore inappropriate for councillors to seek information or advice from council officers other than through the channels outlined in this code, or through other means available to them under the Act or Regulations.” Such a provision would be more relevant to the purpose of section 30 of the draft Code, and would appropriately alert councillors to their responsibility.

Recommendation 5:
That the provisions related to access to information (ss.30.3 to 30.6 in the draft Code) by transferred to Section 31 (Access to Information).

However, this submission also notes the imbalance evident in the examples in s.30 of the Code regarding inappropriate interactions, which are highly skewed toward admonitions directed at councillors to not act inappropriately in their dealings with council officers. In my experience with such matters, it is also not unknown for council officers (including senior staff) to act inappropriately toward councillors. For example, I am aware of cases (not in Newcastle) where council officers have been overbearing and threatening toward councillors, yet only the converse is accommodated in s.30.1.5. This sub-section should be modified accordingly, to include the words “or Council Officers being overbearing and threatening toward councillors or administrators” to the end of the sentence of s.30.1.5 of the exhibited draft.
I have also observed inappropriate interventions by senior council officers in public policy discussions, both at council meetings and through public communication channels, which clearly stray well outside their management functions, and into the area of strategic policy-making that is (or at least should be) the province of councillors. The Code’s admonitions to councillors not to interfere with council’s day-to-day management or operational matters is appropriately clear, but the concomitant responsibility of council officers not to stray – without relevant authority (either by way of statutory authority or delegation) - into areas of public policy making and strategic decision-making that is the proper domain of councillors is not. The Code should be modified accordingly. It is acknowledged that this deficiency derives from the Model Code, and not from council. However, the proposed changes in the exhibited draft compound the current imbalance in the Code, and council should use this opportunity to rectify this as recommended below and elsewhere in this submission.
A further corollary to this is the need for inclusion in the “Inappropriate interactions” section of a reference to the inappropriateness of council officers obstructing or frustrating councillors in the proper performance of their civic duties. Again, I have observed instances of this by council officers, and the Code provides councillors with very few grounds to insist on their rights and to take action if they are inappropriately impeded by council staff from performing their role. The only current reference that touches on this issue is 30.1.3, which refers, usefully but narrowly, to the specific inappropriateness of council officers refusing to give information to a councillor when the same information has been given to other councillors. This provision should be retained, but should be augmented with a more general reference, as recommended below:

Recommendation 6:
That the statement “Council Officers intervening – without appropriate authority – in public policy making deliberations or strategic decisions, or obstructing or frustrating councillors in the proper performance of their civic duties” be included as one of the examples of an “Inappropriate action” in the sub-section points under 30.1 of the draft Code.

Councillors and Public Statements:

Many of the observations and comments made (above) in relation to the “sensitive information” provisions of the draft Code apply equally to the proposed restrictions on the ability of councillors to make public comments and to speak to the media (mostly contained in ss. 36-39, but signalled in section 7 of the draft Code).
The provisions contained in section 7 of the draft Code that purport to restrict the rights of councillors (as council officials) to make public comment on council matters are – like the provisions related to “sensitive information” – inimical to the public interest and representative democracy, and may well – again like the “sensitive information” provisions - be ultra vires, to the extent that they fetter the statutory role of councillors identified in s.232(2) of the Act. In a representative democracy such as Australia, elected representatives must have the right to make a judgement as to whether information provided to them should be disclosed in the public interest. A key channel for the disclosure of information is the media. This symbiotic relationship between elected representative and the media is fundamental to the notion of modern representative democracy, and provides a crucial component in the system of checks and balances that ensures the transparency and accountability of executive government and of government institutions, including local government.
Councillors (who are included in the definition of “council officials” used throughout these sections) should not and cannot be bound – as these sections purport to do - by the same or similar restrictions as council staff in relation to public comments, since the right to make such comments is inherent in, and fundamental to, the role of elected representatives in a representative democracy, and is given statutory force by section 232(2) of the Act.
These sections of the Code offend basic principles of representative democracy and demean the role of councillors as the elected representatives of the community. None of the sections acknowledge (much less respect and reflect) the special role that councillors have in making public comments on current affairs, and the responsibility that council officers have to assist them with this role. In fact, one section of the Code (s.7.3) consigns the making of public comments by council officials (which includes councillors) to an activity undertaken only in their capacity “as private citizens”, in apparent ignorance of the special role of councillors identified in s.232(2) of the Act.
Accordingly, these sections should be amended to acknowledge the special role and responsibility of councillors, in their capacity as elected representatives, to facilitate communication between the community and council, and to clearly distinguish the difference between the role of councillors and that of council staff in such matters.

Recommendation 7: That the current wording of ss.7.1, 7.2 and 7.3 of the draft Code be amended as follows:
S.7.1 Change to: “Councillors and council staff have different roles and responsibilities in relation to public comments about current affairs. As elected representatives, councillors have the right and responsibility to facilitate communication between the community and the council (s.232(2) of the Act), and it is part of the role of councillors, acting in their capacity as elected representatives, to engage in public discussion on current affairs and to provide information to the community about council matters through communication channels such as the media, and at public events. Council officers have a duty to assist councillors in this role, subject to the Act and to the provisions of this code.” [Follow with the current wording of s.7.1, but replace “council officials” with “council officers”].
S.7.2 Change to: “Council officers with the appropriate delegated authority may provide information or speak to the media about Council affairs, in accordance with Council’s Media Policy”.
S.7.3 Change the first reference to “council officials” to “council officers”, to clarify that this provision applies only to council staff.

Councillors and the Media:

1) What is council’s Media Policy?

The structure and content of the draft Code create considerable confusion in relation to identifying what exactly council’s Media Policy is, and how it applies to those covered by the Code.
Looking for what might constitute “council’s Media Policy”, one notes that section 36 actually bears the title “Council’s Media Policy”. However, it comprises only two short sub-sections, one of which (s.36.1) is exhortatory and general in nature, and the other of which (s.36.2), adds to the confusion in its attempt to clarify matters. S.36.2 states that “For the avoidance of any doubt, any complaints about breaches of council’s Media Policy may be considered as a complaint under Part C of this code”. Neither of these two provisions could – in themselves – provide any grounds for founding a breach of the Code. Presumably, these two short provisions do not comprise what is meant by their own references to “Council’s Media Policy”. The references to “Council’s Media Policy” in this section strongly imply that there must be more. Is this Policy a document external to the Code? If so, that document has not been placed on public exhibition with the draft Code, and I could find no copy of it on the council website. If the Media Policy is formed by a number of other sections of the draft Code, then (if these provisions are to remain in the Code) the relevant sections should be specified by identifying them as together comprising Council’s Media Policy. If the references are to a document that does not form part of the Code, then that document should clearly be placed on public exhibition (or at least be publicly available) so that meaningful comment can be made on these provisions. Elected representatives who are elected by, and accountable to, the community must not be subject to provisions in a document that is not easily accessible to the community.
This submission strongly opposes retaining the “media policy” provisions in the Code, at least in their current form. The restrictions on councillors speaking to the media contained in ss.36 – 39 are in many ways more odious and pernicious than the provisions of s.7, contained in Part A of the Code, since the proposed media provisions are included in Part B of the draft Code, which – unlike Part A –would be enforceable. The notion that an elected representative could be put before an unelected conduct review committee on the referral of an unelected council officer (the General Manager) for providing public interest information to the community (either directly or through media) simply because it might be “detrimental to council”, or for breaching a number of the other objectionable information control provisions in the code, is highly offensive. If these provisions are adopted, responsible councillors are likely (and in my view, should) give priority to their role as elected representatives and disregard them whenever the restrictions would impede their ability to provide public interest information to the community. To the extent that councillors have this higher duty, the proposed changes in the draft Code that restrict their ability to perform this duty place committed councillors in an invidious position, and on an almost inevitable collision course with the General Manager. In this sense, the provisions are dangerously provocative, and in themselves threaten the kind of collaborative dynamic that they ostensibly promote. A genuine team spirit between councillors and council administration relies on mutual respect for each other’s roles, and for the judgements that those who perform these roles make – it cannot be created or sustained by draconian information control measures that undermine these roles.

2) Section 36.1:
The objection to subsection 36.1 would be simply resolved by changing “council officials” (which includes councillors) to “council officers”.

Recommendation 8: That the reference in section 36.1 to “council officials” be amended to “council officers”, to clarify that this section applies only to council staff.

3) Section 37.1:
The requirement in s.37.1 that “Councillors must carefully identify the role in which they speak” is unreasonable, unnecessary and impractical, and shows little appreciation of how the media works, or of councillor-media relations.
When a councillor speaks to the media, it is generally understood by both journalists and audiences that they are doing so in their role as a councillor (i.e., as an elected representative). If the councillor is speaking in some other capacity (i.e., as a representative for some organisation of which they are a spokesperson, etc) then this would either be self-evident to the journalist, or the councillor would usually make this known to the journalist, and the journalist would attribute any comments accordingly. I suspect that the reason behind this requirement is the perception that some audiences might assume that a councillor is speaking on behalf of the council. This may occur in some cases, but the problem is not widespread, and it is certainly not commensurate with the imposition of a Code of Conduct requirement that could found an action for a breach against a councillor, or create a mechanism that might have the effect of dissuading councillors from participating in public discourse. Other elected representatives (such as state and federal parliamentarians) are not bound by any Code of Conduct that requires them to clarify whether they are speaking in their capacity as a parliamentarian representing a certain constituency, or on behalf of the government, or of their party, or of the parliament. The media attributes comments and views expressed by elected representatives through a standardised, well established, and generally well understood set of conventions for media citation. If a councillor were to “carefully identify” to a journalist that they are speaking in their role as a councillor (as the draft Code provision requires), the response of the journalist is likely to be a quizzical shrug of the shoulders. The point would certainly not be included in an ensuing news report, except in very rare instances in which the capacity in which the councillor was speaking was directly relevant to the news angle (e.g., “Clr Bloggs held her first media conference today, and spoke for the first time on behalf of the council in her capacity as the city’s new Lord Mayor.”) I am sure that the staff of council’s own Communication Unit (some of whom were my students during their university studies in Communication) would corroborate these comments (I do wonder whether they were even consulted about these – and other media related – provisions in the draft Code). This requirement should be modified as recommended below:

Recommendation 9: That the second sentence in s.37.1 be amended to read: “Every councillor has a right to express a personal statement on any issue, whether or not that opinion reflects council’s official position, as long as the councillor does not claim to be representing or speaking on behalf of the council.

4) Section 37.2
This section of the draft Code, which attempts to prescribe the means by which a councillor is required to “carefully identify” the capacity in which they are speaking to the media, significantly compounds the problem initiated by the previous section. Again, it demonstrates no understanding of relevant media production processes. The statement proposed in the recommendation above would also replace the need for this subsection. This submission therefore recommends that this subsection not be adopted.

Recommendation 10: That s.37.2 of the draft Code not be adopted.

5) Section 37.3
This section of the draft Code admonishes councillors to consider the impact of their media statements on the council and on “team” dynamics. The “team” references throughout the draft Code are overplayed, and participate in, and reinforce, the managerialist view that pervades these provisions of the Code that the primary role of a councillor is to be part of a “team” with other councillors and council staff. Working with other councillors and council staff is certainly an important part of the role of a councillor, but it is secondary to a councillor’s relationship with, and accountability to, the community.
Whilst the wording of this section is such that it would be difficult for anyone to allege that a councillor had breached it (since it only requires councillors to consider certain matters, rather than to take any particular action), the principles involved are important enough for the section to be redrafted to better reflect the legitimate dilemma faced by councillors in circumstances where they feel genuinely duty bound to publicly criticise the council and other councillors in the public interest. Whilst such criticism can have a negative impact on council, it can also shed public light and stimulate public debate on genuine matters of public concern. The right of an elected representative to speak freely on such matters, unfettered by any threat that they might breach the Code for simply being critical, is a crucially important element of representative democracy. In this way, elected representatives and the media play an important watchdog role over the decisions and conduct of other elected representatives and government institutions.
To achieve an appropriate balance between the various countervailing elements involved here, this section could be reworded, along the lines indicated below:

Recommendation 11: That s.37.3 of the draft Code be amended to: “Councillors should consider the short and long term impact of personal statements and weigh any public interest benefits gained by the community from such statements against the possible detrimental impact on Council’s teamwork and unity of comments that are critical of majority council decisions and/or fellow councillors.

6) Section 37.4
Section 37.4 requires significant clarification if it is to remain in the Code. The phrase “while formally representing council” is not defined or explained. If it is intended to apply only to circumstances in which a councillor is acting under a formal instrument of delegation to represent council, then – appropriately reworded – the section may be useful in distinguishing an important difference between what is expected when a councillor is acting in their normal (and generally assumed) capacity as an individual elected representative, and what is expected when a councillor is acting as a formal representative of council. However, the Code would have to clarify the circumstances in which it would be understood that a councillor is “formally representing council”. Is a council-nominated councillor who sits on a Joint Regional Planning Panel “formally representing council” in such a capacity? Is a councillor who is invited to a function via an invitation sent to council for such representation “formally representing council”? Is a councillor who is appointed to a body such as Hunter Councils, and is then appointed by that body to represent it in some public capacity, “formally representing council” when doing this? Many other common scenarios would raise similar questions about exactly when a councillor is “formally representing council”.
It is also not clear why such a provision should apply specifically to councillors. The same principle – to adhere to council policy - should surely apply to any person (whether a councillor or not) who is meant to be representing council; in fact, it could be argued that, if anything, councillors who are formally representing council should be permitted more licence to depart from strict adherence to advocating council’s official policy, since only they (of all council officials) have some statutory basis to do so. I am aware of situations where, for example, General Managers have spoken publicly on policy matters and have failed to “speak enthusiastically” – or even to support – a council’s official policy. Such instances are surely more serious than the circumstances covered in s.37.4, yet the Code is silent in this respect.
Furthermore, any rewording of this provision should soften the requirement to “speak enthusiastically”. It should be sufficient to require – as a minimum - that a councillor acting under a delegation to represent council not make public comments that are contrary to council policy whilst acting in such a representative capacity, or at least to carefully distinguish their personal view from the official policy. The requirement (which could found an action for a breach of the Code against a councillor) that such a councillor must speak enthusiastically in support of every council policy is unreasonable and unrealistic, given the diversity of views among councillors about different council policies, and the varying degrees of commitment to these policies among councillors.

Recommendation 12: That section 37.4 be reworded to clarify what is meant by “formally representing council” and to soften the requirement that councillors must be able to “speak enthusiastically” about official council policy in such circumstances.

7) Section 37.5:
To the extent that it applies to councillors, section 37.5 is a particularly objectionable provision, and should not be included in the adopted Code. The section could unreasonably fetter councillors in their ability to publicly criticise council (and hence perform the important watchdog role identified above), and places an unreasonable (and unworkable) reporting burden on councillors.
The current wording of the provision is very loose, and would render it effectively unworkable.
The lack of any precision to what is meant by “contribute personal statements for publication” raises questions about the circumstances in which this section would apply. Presumably, the requirement would apply to media releases, letters to the editor, and op-ed pieces, but would it also apply to a casual conversation that a councillor might have with a journalist at a public event, or to the comments that a councillor might make to a journalist when contacted by a journalist for comment on an issue? The provision again appears to be based on a lack of understanding of the diverse ways in which councillors and journalists interact.
The phrase “personal statements must not include personal criticism of council officers” is ambiguous. Does “personal criticism” in this context mean any criticism of council officers that are the personal views of the councillor, or does it mean any criticism that a councillor makes of council officers that might apply to those officers in a personal way? The first interpretation would be an unreasonable fettering of the right of councillors to legitimately criticise the actions of council officers, and the second is already (and in my view more appropriately) covered elsewhere in the draft Code (s.30.1.6), and in the current Code (s.9.8(f)).
The requirement that councillors provide copies of “personal statements” to the media is distasteful, unnecessary and unworkable. Statements from councillors in forms such as media releases, letters to the editor and op-ed pieces are readily available to council’s Communication Unit and media monitoring service. The circumstances in which councillors make other statements to the media do not easily lend themselves to the kind of system of information control implied by the last sentence in s.37.5. A councillor who has a conversation with a journalist is not necessarily (or even usually) aware of which parts of that conversation will be published. However, theoretically, any part of it might be published, so a councillor might be in breach of the proposed requirement to copy all statements for publication to the Council’s Media Officer unless the councillor provided the Media Officer with a transcript or recording of every conversation that the councillor had with a journalist.
On a number of levels, this provision is so seriously flawed, and its necessity and usefulness so dubious, that council would be well advised to drop it entirely.

Recommendation 13: That s.37.5 not be adopted.

8) Section 37.7:
This submission raises no particular objection to the content of s.37.7 (regarding defamation), but its status within the Code may require more thought. If it is simply a warning to councillors about the potential defamation risk to which they are exposed in making public statements, then it might be better placed in the non-enforceable section of the Code, so that its intention as a helpful piece of advice, rather than a Code requirement, is clear. Its placement in the enforceable section of the Code may be taken to mean that an allegedly defamatory statement by a councillor could found an action for a breach of this section of the Code. If so, this opens up the possibility of a whole new range of code of conduct complaints, in one of the most difficult and uncertain areas of civil law. Whilst the Code should not avoid important issues of conduct simply because they are difficult to deal with, the Code already contains provisions covering comments that might infringe various ethical or behavioural standards, and council may want to consider more fully the implications of introducing the possibility that conduct reviewers or committees may have to deliberate on complaints about whether a particular comment is defamatory or not. In my view, it is highly unlikely that the potential legal and financial implications of this would be in any way commensurate with the benefit that such an addition would bring to the enforceable part of the Code.

Recommendation 14: That s.37.7 be transferred to an appropriate section in Part A of the Code.

9) Section 38.4
Section 38.4 attempts (as do previous provisions) to deal with the distinction between Council Officials (including councillors) acting in their individual capacities, and in a capacity in which the Official is representing council. The wording in this section is more acceptable than previous attempts, but would still benefit from the addition of a qualification to the effect that it is only in circumstances where there could be reasonable doubt about the capacity in which the Council Official is acting that there is a requirement to clarify this (see previous discussion of this issue).

Recommendation 15: That s.38.4 be amended to incorporate the following words at the beginning of the first sentence: “In circumstances where there may be a reasonable doubt about whether a Council Official is acting in an individual capacity, or as a formal representative of council, ....

Internet Activities (Section 39)

The new section on Internet activities would be generally acceptable if it applied only to council staff. However, its application to all Council Officials (including councillors) is unacceptable (and probably unworkable), for similar reasons to those previously covered in relation to the other proposed information control measures in the Code.
Much of the section is actually unnecessary, as evidenced by its many references to the relevance of other parts of the Code (e.g., in ss39.1.2 (a), (b) and (c))., and the repetition of matters (e.g., s.39.1.3) that are already adequately covered elsewhere in the Code.
The reference to “Council’s Media Policy” in s.39.1.1 involves the same problems as previously noted (see comments on s.36 of the draft Code).
Councillors should not be required to make the disclaimer that would be required by this section (in s.39.1.4). As long as a councillor who uses internet media to communicate with the community does not incorrectly claim that they are speaking on behalf of the council, it must be accepted as understood that they are acting in their statutory capacity as an individual elected representative under s.232(2) of the Act. Councillors acting in this capacity should have no more obligation to make such a disclaimer than council itself does, in issuing official council media releases that do not attempt to distinguish the views expressed in them from those of individual councillors.
Section 39.1.6 is an odd proposal, since most council officials (including councillors) do not have the required authorisation to do what this provision suggests (i.e., publish content on council’s website). If a councillor (or other council official) did actually take up this suggestion, it has the potential to create exactly the kind of confusion that much of the rest of the section appears anxious to avoid (i.e., confusion about the capacity in which someone is speaking when communicating via internet media). In terms of its potential as grounds for an action against a breach of the code, this provision is probably harmless enough (though how a council official could establish that they “considered” the appropriateness of publishing content on council’s website if a complaint were made about this is not entirely clear to me). However, the usefulness of this provision seems to me to be very open to question. It would seem more appropriately directed as a suggestion to particular council officials in particular instances, rather than as a provision in the enforceable portion of a code of conduct.

Conflict of Interest provisions:

This submission strongly supports the general direction of the proposed changes to the Conflict of Interest provisions (i.e., the inclusion of state and federal related political donations (s.5.3), and the consequent increased disclosure obligations for political donations related to state and federal elections).
The wording of s.5.3 may require some attention. This section states the code applies to “all political contributions whether they relate to Local, State, or Federal Government”. Given a tendency in some quarters to use technicalities to escape disclosure requirements, the word “Government” may provide a technical ambiguity that would allow someone who received a political contribution for a state or federal election campaign to argue that such a campaign is not related to “Government”, in its strict sense, which is often taken to refer narrowly to the executive arm within the larger system of government. If the intention is for the Code to include political contributions to those covered by the code who stand as candidates in Local, State or Federal elections, then the section should simply state this, and avoid any ambiguity (e.g., “This code applies to all political contributions related to Local, State or Federal elections, candidates and elected representatives”). The same potential problem is in the wording of s.20.1.

Recommendation 16: That the wording of section 5.3 and section 20.1 be amended to clarify that the code applies to donations related to state and federal election campaigns.

Miscellaneous matters:

Limited time (see cover letter) has prevented me from commenting on a significant number of other matters in - and associated with - the draft Code. The following brief comments are provided from notes I took during a brief scan over one part of the document. I believe the conflict of interest provisions in the Code (including a number of significant associated definitional issues) require major attention. I strongly recommend that council schedule another review (and public exhibition) of the Code for some time in the early part of 2010.
Section 3 (Purpose of the Code)
* The additions to section 3 (Purpose of the Code) are generally supported (i.e., sections 3.3 and 3.4), with the following comments:
- the wording of the “track changes” version of the draft for section 3.3 is: “This Code applies equally to all council officials/officers”, whereas the wording in the non-track changes version of the draft is “This Code applies to all council officials”. This is, presumably, a drafting error. The non track-changes wording (“This Code applies to all council officials”) is preferred, since the notion that the Code applies equally to all council officials is quite contestable (in fact, this submission regards it as self-evidently wrong), and the inclusion of “/officers” after “officials” would be redundant, since the definition of council officials (in s.2.1.11) includes council officers.
- whilst this submission supports the proposed 3.4, its assertion that “this code prevails” in cases where there is conflict between the Code and the rules of conduct of governing bodies to which councillors are appointed or nominated by council, may have significant (and unanticipated) implications for council-nominated councillors serving on Joint Regional Planning Panels, who are now subject to the recently released Code of Conduct developed specifically for Panel members. The primacy of the council Code will place on these councillor members of the panel a significantly more rigorous disclosure of interests regime than that which applies to the other (Ministerially appointed) panel members under their code of conduct. This is as it should be, because council should not reduce levels of accountability and transparency for councillors to a lowest common denominator, but council should proactively inform its councillor nominees of their obligations in this regard.

John Sutton
16 November 2009

Newcastle Citizens for Local Democracy

Wednesday, November 18, 2009

Submission on Newcastle City Council draft Code of Conduct 16 November 2009

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Survey on Newcastle City Centre revitalisation

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