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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Howard v Code of Conduct Panel

Details

AGLC: Howard v Code of Conduct Panel [2024] TASSC 64
Case: [2024] TASSC 64
Decision Date: 13 November 2024

CaseChat Overview and Summary

In the matter of Howard v Code of Conduct Panel, the plaintiff, a municipal councillor, challenged the constitutionality of certain provisions of a local government code of conduct. The dispute centred on the extent to which the code of conduct infringed upon the freedom of political communication, an implied right within the Commonwealth Constitution. The High Court of Australia was tasked with determining the validity of the challenged provisions.

The central legal issues revolved around the interpretation and application of the freedom of political communication as it intersects with the regulation of municipal councillors' conduct. The court was required to assess whether the contested provisions of the code of conduct were compatible with the implied freedom, particularly in the context of the councillor's interactions with the community, fellow councillors, and council employees, as well as the manner in which the councillor represented themselves and the council. The court also had to consider whether the provisions were reasonably appropriate and adapted to serve a legitimate end in a democratic society.

The court found that the challenged provisions of the code of conduct were indeed compatible with the implied freedom of political communication. It held that the provisions were reasonably appropriate and adapted to serve the legitimate aims of maintaining public confidence in local government and ensuring respectful and effective interactions among councillors, between councillors and the community, and between councillors and council employees. The court emphasised that the provisions were not so broad as to unduly restrict the freedom of political communication, and they were necessary to achieve the legitimate objectives pursued. Therefore, the provisions were held to be constitutional.

In light of the above, the court dismissed the plaintiff's challenge to the code of conduct provisions. The determinations of the Code of Conduct Panel in the disciplinary proceedings were upheld, and the plaintiff's application was rejected. The court's decision underscored the balance between the protection of political communication and the need for reasonable regulation in the context of local government conduct.

Orders