Howard v Code of Conduct Panel

[2024] TASSC 64

[2024] TASSC 64

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Howard v Code of Conduct Panel [2024] TASSC 64
PARTIES:	HOWARD, Gregory James
v
CODE OF CONDUCT PANEL
FILE NOS:	254/2023, 682/2023
DELIVERED ON:	13 November 2024
DELIVERED AT:	Hobart
HEARING DATE:	20 February 2024
JUDGMENT OF:	Blow CJ
CATCHWORDS:

Constitutional Law – Operation and effect of the Commonwealth Constitution – Rights and freedoms implied in Commonwealth Constitution – Freedom of political communication – Particular cases – Code of conduct for municipal councillors – Requirements for provisions as to behaviour of councillor in relationships with community, other councillors and council employees and as to manner in which councillor represents self as a councillor and represents the council to the community – Determinations of code of conduct panel in disciplinary proceedings.

Aust Dig Constitutional Law [430]

Local Government Act 1993 (Tas), s 28S(1)

Cases cited:

Aid/Watch Inc v Federal Commissioner of Taxation [2010] HCA 42, 241 CLR 539
Coleman v Power [2004] HCA 39, 220 CLR 1
Farm Transparency International Ltd v New South Wales [2022] HCA 23, 403 ALR 1
Howard v Code of Conduct Panel [2019] TASMC 6
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
McCloy v New South Wales [2015] HCA 34, 257 CLR 178
Palmer v Western Australia [2021] HCA 5, 272 CLR 505
Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 24

Wotton v Queensland [2012] HCA 2, 246 CLR 1

REPRESENTATION:

Counsel:

Applicant:	T D Cox
Attorney-General:	N Winton, M Jehne

Solicitors:

Applicant:	Simmons Wolfhagen
Attorney-General:	State Litigator

Judgment Number:	[2024] TASSC 64
Number of paragraphs:	38

Serial No 64/2024 File Nos:254/2023,

682/2023

GREGORY JAMES HOWARD v CODE OF CONDUCT PANEL

REASONS FOR JUDGMENT BLOW CJ
13 November 2024

1 The applicant in these proceedings, Gregory James Howard, is, and was at all material times, the mayor of Dorset, and a member of the Dorset Council. That council is based in Scottsdale. Under s 28T of the Local Government Act 1993, every Tasmanian council is required to have a code of conduct relating to the conduct of its councillors. Complaints about the conduct of a councillor are dealt with by a Code of Conduct Panel established by s 28K(1) of the Local Government Act. That panel is the respondent in these proceedings. The applicant is aggrieved by two decisions of the Panel.

2             The first of those decisions was made on 23 March 2021 in relation to a complaint by a man named Lawrence Archer. His complaint related to comments made by the applicant about him in a letter published in a weekly newspaper named "The North Eastern Advertiser". The Panel made a determination that the applicant had breached Code of Conduct provisions that required a councillor to treat all persons fairly, and not to cause any reasonable person offence or embarrassment.

3             The second of the two decisions was made by the Panel on 5 January 2023 in relation to a complaint by a man named Karl Willrath. That complaint related to words used by the applicant when speaking to Mr Willrath during an open council meeting. The Panel determined that the applicant had engaged in conduct that had the potential to bring the council and its elected members into disrepute, that he had treated Mr Willrath unfairly, and that he had engaged in conduct that would cause a reasonable person embarrassment.

4   On 2 February 2023 the applicant applied for judicial review of the determination relating to

Mr Willrath.

5 Section 23 of the Judicial Review Act 2000 requires an application for judicial review to be made within 28 days after the applicant is given a document setting out the terms of the decision and a statement giving the reasons for the decision, when those events occur. On 24 March 2023 the applicant filed an application seeking prerogative relief in the nature of certiorari in respect of the determination of 23 March 2021 relating to Mr Archer. On 20 April 2023 Holt AsJ made a general order to show cause, requiring the Panel to show cause why that decision should not quashed.

6 I heard the two matters together on 20 February 2024. Neither the Panel nor either of the complainants sought to take any part in the proceedings. The Attorney-General intervened in the judicial review application pursuant to s 39 of the Judicial Review Act, and in the other matter pursuant to s 78A of the Judiciary Act 1903 (Cth), and acted as a contradictor in relation to both matters.

7             The applicant contends that the Panel's two decisions were invalid because they related to conduct on his part that was protected by the implied freedom of political communication conferred by the Australian Constitution.

The Archer complaint

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8            In a letter published in The North Eastern Advertiser on 9 September 2020, Mr Archer made comments about the financial affairs of the Dorset Council. Three weeks later, on 30 September 2020, a letter from the applicant to the editor of that newspaper was published. It read as follows:

"John Mark's letter from last week clearly showed up the very significant flaws in Lawrence Archer's previous correspondence to this paper regarding the finances of Council.

The question now being posed to me by Dorset residents is 'Is Lawrence Archer financially illiterate or is he just deliberately and vindictively misrepresenting the truth in an attempt to tarnish the image of Council?'

I have my opinion on that question, but I will leave it to the readers of the Advertiser to make up their own minds on the subject.

Archer's voting record when on Council where he voted against many of the very positive initiatives that Council has implemented (eg free swimming pool entry, scrapping of licence and lease fees for community groups and sporting clubs) certainly begs the question as to whether he was on Council for the right reasons."

9             Part 7.1(a) of the Dorset Councillor Code of Conduct provided that a councillor "must treat all persons fairly". Part 7.1(b) provided that a councillor "must not cause any reasonable person offence or embarrassment".

10           In relation to the question in the second paragraph of the applicant's letter, the Panel concluded that a reasonable person would have assumed that the question revealed the applicant's personal view of Mr Archer. It regarded that paragraph as unfair. It also concluded that the questioning of Mr Archer's voting record whilst a councillor was unfair. It concluded that the language in the question in the second paragraph, combined with the impugning of Mr Archer's motives, went beyond the bounds of robust debate and breached the requirement not to cause any reasonable person offence or embarrassment. In respect of the breaches of the two provisions, it sanctioned the applicant in the following terms:

"Pursuant to section 28ZL(2)(b) [sic] of the Act, the panel strongly reprimands Cr Howard and reminds him of his responsibility as a public official in relation to public comment that may be offensive to others."

The Willrath complaint

11           Mr Willrath's complaint related principally to words spoken by the applicant at a meeting of the Dorset Council on 18 October 2019. The Panel was provided with a transcript of the relevant part of the meeting and the minutes of the meeting. Mr Willrath was not a member of the council. He attended the meeting as a member of the public, and asked questions when the public were given the opportunity to do so. There followed a discussion about the cost to the council of questions asked by Mr Willrath. Mr Willrath complained that the applicant, in chairing the meeting, had permitted the council's general manager to publicly make offensive statements about him, including a statement that his questions had been spurious. Later, it appears from the Panel's reasons for its determination that during the course of that discussion the applicant said to Mr Willrath, "I am not sure if it is a lack of attention or comprehension on your part." It also appears from the Panel's determination that the applicant said something to imply that Mr Willrath had caused the council to incur expense by asking questions.

12          Part 3.1 of the Code of Conduct provides, "The actions of a councillor must not bring the Council or the office of councillor into disrepute."

13           The Panel made findings that the applicant had breached Part 3.1 in two respects – firstly by permitting the general manager to make comment on the cost of Mr Willrath's questions, which he

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suggested was spurious, and also by suggesting that Mr Willrath was not paying attention or was incompetent. It concluded that the applicant's behaviour was ill-advised and had the potential to bring the council and its elected members into disrepute. It found that the applicant had breached Part 7.1(a) by treating Mr Willrath unfairly in that he had blamed Mr Willrath for the incurring of expense by the council. It found that the applicant had breached Part 7.1(b) in that his comments about Mr Willrath not paying attention or lacking comprehension were offensive, and on the basis that his comments about the cost of Mr Willrath's questions would cause a reasonable person embarrassment. It decided to sanction the applicant pursuant to s 28ZI(2) of the Act by requiring him to "undertake counselling in relation to him managing conflict with some members of his community".

The constitutional issues

14           The applicant contends that certain provisions relating to codes of conduct in the Local Government Act are invalid because they are incompatible with the implied freedom of communication concerning political and public affairs under the Commonwealth of Australia Constitution. Alternatively, he contends that the provisions in question should be read down so as not to apply to communications concerning such matters.

15   At the material times the Local Government Act contained provisions to the following effect:

• Under s 28R(1), the Minister was to "make a model code of conduct relating to the conduct of councillors".

• Under s 28T(1) each council was required to adopt the model code of conduct, either with or without permitted variations, as its code of conduct relating to the conduct of its councillors.

• Under s 28S(1), the model code of conduct was required to provide for various specified matters.

• By virtue of s 28S(1)(f), one of those matters was "the appropriate or inappropriate behaviour of a councillor in his or her relationships with the community, other councillors and council employees".

• By virtue of s 28S(1)(g), another of those matters was "the proper and improper manner in which a councillor represents himself or herself as a councillor, and represents the council, to the community".

16 The applicant's central contention in these proceedings is that s 28S(1)(f) and (g) are both invalid or, alternatively, that each should be read down.

17          The significant provisions in the Local Government Act as to the enforcement of a code of conduct can be summarised as follows:

• Section 28U required a councillor to comply with the provisions of the council's code of conduct in performing the functions and exercising the powers of his or her office.

• Sections 28V to 28ZH inclusive contained procedural provisions as to the making, withdrawal, amendment, assessment, referral, summary dismissal and investigation of code of conduct complaints, and hearings by the Panel.

• Section 28ZI(1) empowered the Panel to determine a complaint by either upholding it, dismissing it, or upholding part of it and dismissing the remainder.

• Section 28ZI(2) empowered the Panel to impose one or more sanctions on a councillor. The possible sanctions are a caution under s 28ZI(2)(a); a reprimand under s 28ZI(2)(b); a requirement to apologise under s 28ZI(2)(c); a requirement to attend counselling or a training course under s

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28ZI(2)(d), or a suspension from performing and exercising the functions and powers of the office

of councillor for a period not exceeding three months under s 28ZI(2)(e).

• Under s 28ZL, if a councillor was suspended three or more times within a certain period, the Minister could remove the councillor from office.

18   The Attorney-General's primary contentions are as follows:

• That the implied constitutional limitation concerning freedom of communication on governmental and political matters can result in the invalidity only of statutory provisions, and not in the invalidity of subordinate instruments such as codes of conduct or provisions therein.

• That the impugned provisions, namely s 28S(1)(f) and (g), do not have any material effect on the freedom of communication on governmental and political matters, and are therefore valid.

• Alternatively, if those provisions do have any material effect on the freedom of such communication, their impact is so slight that they are not invalid.

19           The Constitution provides for a system of representative and responsible government with a universal adult franchise. Communication between electors and legislators and the officers of the executive, and between electors themselves, on matters of government and politics is "an indispensable incident" of that constitutional system. It follows that there is an implied constitutional limitation precluding the enactment of legislation that curtails the freedom of communication on governmental and political matters: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 555-560; Aid/Watch Inc v Federal Commissioner of Taxation [2010] HCA 42, 241 CLR 539 at [44]; Wotton v Queensland [2012] HCA 2, 246 CLR 1 at [20]; McCloy v New South Wales [2015] HCA 34, 257 CLR 178.

20           The implied constitutional freedom of political communication recognised by the High Court in Lange and subsequent cases operates as a limitation on legislative power, but does not confer private rights. As French CJ, Kiefel, Bell and Keane JJ said in McCloy (above) at [2]:

"The freedom under the Australian Constitution is a qualified limitation on legislative power implied in order to ensure that the people of the Commonwealth may 'exercise a free and informed choice as electors'. It is not an absolute freedom." [Footnote omitted.]

21          In McCloy (above) Gageler J (as he then was) explained the nature and purpose of the implied freedom as follows, at [119]-[120]:

"[119]	The freedom implied as a matter of necessity does not go beyond freedom of political communication. The freedom exists to protect: systemic integrity, not personal liberty; communication, not expression; and political communication, not communication in general. The protection 'creates an area of immunity from legal control' as a consequence of its operation and not as a reason for its existence.
[120]	That limitation in its scope immediately distinguishes the implied freedom of political communication from express guarantees of freedom of speech or expression in many other constitutional systems." [Footnote omitted.]

22           When it is contended that a legislative provision is invalid because it burdens the implied freedom of political communication, the applicable principles are as stated by Gordon J in Farm Transparency International Ltd v New South Wales [2022] HCA 23, 403 ALR 1 in the following passage at [153]:

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"The applicable principles are well established. Whether the impugned provisions are invalid for impermissibly burdening the implied freedom falls to be assessed by reference to the following questions. Do the impugned provisions effectively burden the freedom of political communication? Is the purpose of the impugned provisions legitimate, in the sense that it is consistent with the maintenance of the constitutionally prescribed system of government? Are the impugned provisions reasonably appropriate and adapted to advance that purpose in a manner consistent with the maintenance of the constitutionally prescribed system of government? If the first question is answered 'yes', and the second or third question is answered 'no', the impugned provisions will impermissibly burden the implied freedom and therefore be invalid." [Footnote omitted.]

23           The implied limitation on legislative power applies to statutes, but not to the exercise of statutory powers pursuant to statutes. In Wotton v Queensland (above) a statute conferred on a parole board a discretion to attach conditions to a parole order. The discretionary power could result in a burden on a parolee's freedom of political communication. The High Court held that the statute did not impermissibly burden the freedom of communication about government and political matters, and that any complaint about an exercise of power under the statute did not raise a constitutional question.

24           In Palmer v Western Australia [2021] HCA 5, 272 CLR 505, the plaintiffs were aggrieved by a Minister's declaration of a State of Emergency applying to the whole of Western Australia under a provision of the Emergency Management Act 2005 (WA). The High Court held unanimously that the statutory provisions were valid, and that the making of directions under those provisions did not raise a constitutional question. Although that case concerned s 92 of the Constitution, not the implied freedom of political communication, it is authority for the general proposition that incompatibility with the Constitution can result in the invalidity of statutory provisions, but not of exercises of statutory power. Two of the judges in that case explained that, just as no constitutional question arises in relation to executive action authorised by a statute, no such question arises in relation to the making of delegated legislation authorised by a statute. Gageler J (as he then was) said the following, at [119]- [120]:

"[119] Where executive action purporting to be taken pursuant to statute imposes a burden argued to infringe the implied constitutional guarantee of freedom of political communication or the express constitutional guarantee of absolute freedom of trade, commerce and intercourse among the States, two distinct questions accordingly arise: one constitutional, the other statutory. The statutory question is whether the executive action is authorised by the statute. The constitutional question is whether the statute complies with the constitutional guarantee if, and insofar as, the statute authorises the executive action.

[120]     Those two distinct questions arise in respect of the making of subordinate or delegated legislation in the same way as they arise in respect of any other executive action pursuant to statute. Our conception of subordinate legislation, as Dixon J explained in Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan, is that it is wholly dependent for its force and effect on the enactment, and the continuing operation of the statute by which it is authorised." [Footnote omitted.]

25   Edelman J said the following, at [225]:

"The need to adjudicate questions of validity at the level of an empowering statute arises irrespective of whether the action under the statute is administrative action or delegated legislation."

26           The first question to be addressed is not whether any provisions in the Dorset Councillor Code of Conduct imposed a burden on the freedom of communication as to governmental and political matters. It is not whether any provision in the Local Government Act made it possible for a code of

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conduct provision to impose such a restriction. It is whether s 28S(1)(f) and/or (g) effectively
burdened the freedom of communication on governmental and political matters.

27 It is important to recognise that the implied constitutional freedom is one that applies to matters of significance at a federal level. That is because it is a freedom that arises by implication from provisions of the Commonwealth Constitution. However it must not be assumed that political matters at levels below the federal level are irrelevant to federal politics. In Lange (above), the High Court said the following, at 571-572:

"Of course, the discussion of matters at State, Territory or local level might bear on the choice that the people have to make in federal elections or in voting to amend the Constitution, and on their evaluation of the performance of federal Ministers and their departments. The existence of national political parties operating at federal, State, Territory and local government levels, the financial dependence of State, Territory and local governments on federal funding and policies, and the increasing integration of social, economic and political matters in Australia make this conclusion inevitable."

28           In Coleman v Power [2004] HCA 39, 220 CLR 1, the High Court was asked to hold that a provision in a Queensland statute making it an offence to use insulting words to any person in a public place impermissibly burdened the implied freedom. The appellant in that case was protesting in a public place, handing out pamphlets containing allegations of police corruption, when he was approached by a police officer who demanded a pamphlet. The man refused and said loudly, "This is Constable …, a corrupt police officer." The statutory provision in question applied to "threatening, abusive, or insulting words".

29           McHugh J held that the words "or insulting" burdened communication on federal and governmental matters and should be read down. Gummow, Hayne and Kirby JJ held that if the relevant provision was capable of burdening communication about government or political matters, it was reasonably appropriate and adapted to serve the legitimate public end of keeping public places free from violence, but held that the conviction should be quashed on another basis. Gleeson CJ, Callinan and Heydon JJ dissented. McHugh J said the following at [80]:

"Public evaluation of the performance of Federal Ministers, such as the Attorney- General, the Minister for Justice and the Minister for Customs, may be influenced … by the manner in which State police officers enforce federal law and investigate federal offences. Allegations that members of the Queensland police force are corrupt may reflect on federal Ministers as well as the responsible State Ministers. Such allegations may undermine public confidence in the administration of the federal, as well as the State, criminal justice system."

30 Clearly the question whether s 28S(1)(f) and (g) burden the freedom of communication on governmental and political matters relates to matters of relevance to the system of representative and responsible government at a federal level.

31          In order to address that question it is appropriate to consider some fundamental provisions of the Local Government Act. The most significant provisions can be summarised as follows:

• According to its long title, it is "An act to provide for local government and establish councils to plan for, develop and manage municipal areas in the interests of their communities".

• The State is divided into "municipal areas": s 16(1).

• A council is established in each municipal area: s 18(1).

• A council is a body corporate with perpetual succession and a common seal: s 19(1).

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• The functions of a council include providing for the health, safety and welfare of the community, representing and promoting the interests of the community, and providing for the peace, order and good government of the municipal area: s 20(1).

• In performing its functions, a council is required to "consult, involve and be accountable to the community": s 20(2).

• A council consists of persons elected in accordance with Part 4 of the Act: s 25(1).

• The chairperson of each council other than the Hobart City Council is to be known as "the mayor": s 26(1)(b).

• The functions of a mayor include "to act as a leader of the community of the municipal area"; "to promote good governance by, and within, the council"; and "to act as the spokesperson of the council": s 27(1)(a), (c) and (e).

• The functions of an individual councillor include representing in the community, acting in the best interests of the community, and facilitating communication by the council with the community: s 28(1)(a), (b), and (c).

32 Section 28S(1)(f) required the Minister, in making a model code of conduct, to make provision relating to the appropriate or inappropriate behaviour of a councillor. Section 28A(1)(g) required the Minister to make provision as to the proper or improper manner in which a councillor represents himself, herself or the council to the community. Neither provision required the Minister to impose a restriction on the content of any communication by a councillor. In the words of Gageler CJ, a code of conduct could deal with expression, but not communication. Each impugned provision created a possibility that the model code of conduct, or a variation thereof adopted by a council under s 28T, would include a provision in a piece of delegated legislation imposing a restriction on the manner or form of a political communication. However, as Wotton v Queensland (above) illustrates, it is the statutory provision that needs to be considered, not an exercise of power pursuant to the statutory provision. Whilst the impugned provisions created the possibility of an exercise of statutory power burdening political communication, neither of them burdened political communication. It follows that neither of them was inconsistent with the implied freedom of political communication.

33           Each of the impugned provisions related to the behaviour of councillors. Section 28S(1)(g) did not expressly refer to behaviour, but the reference to the "manner in which a councillor represents himself or herself as a councillor, and represents the council" plainly relates to the manner in which a councillor behaves in relation to the community. If a councillor behaves badly in his or her relationships with the community, other councillors or council employees, or in representing himself or herself or the council to the community, even extremely badly, I have great difficulty in seeing how that councillor's bad behaviour could be of any significance in relation to federal politics. I consider that there is no real likelihood that bad behaviour on the part of a councillor might, as the High Court put it in Lange, "bear on the choice that the people have to make in federal elections or in voting to amend the Constitution", or on "their evaluation of the performance of federal Ministers and their departments". The lack of any likely impact of a councillor's bad behaviour on federal politics also compels a conclusion that neither of the impugned provisions was inconsistent with the implied freedom of political communication.

The statutory issue

34           In both the proceedings relating to the Archer complaint and the proceedings relating to the Willrath complaint, the applicant contends that the implied freedom of political communication was a relevant consideration, and that the determinations of the Panel involved an improper exercise of power because it failed to take that consideration into account.

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35           However, as Mason J (as he then was) said in Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 24 at 39, "The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision". (My emphasis.)

36          There is no provision in the Local Government Act that expressly or impliedly requires a code of conduct panel to consider the implied freedom of political communication.

37           In relation to Mr Willrath's complaint, the applicant said nothing in relation to the implied freedom of political communication in his written submissions to the Panel or during its hearing. In relation to Mr Archer's complaint, he referred to the implied freedom in written submissions and provided the Panel with a decision of a magistrate in relation to the implied freedom: Howard v Code of Conduct Panel [2019] TASMC 6. In its reasons, the Panel said that it had regard to the magistrate's decision, and that it acknowledged the applicant's "right to free speech". These grounds must fail on the basis that the Panel was not required to take the implied freedom into account in either case, and on the basis that it did take it into account in relation to the Archer complaint.

Conclusion

38          For these reasons, the application in relation to the Archer complaint (254/2023) is dismissed, and the general order to show cause in relation to Mr Willrath's complaint is discharged.