Saturday, 6 March 2010

My response to the Code of Conduct complaint

Dear Mr Smith


I write in response to your letter to me received by email on 23 February 2010 regarding a complaint lodged against me for allegedly breaching Newcastle Council’s Code of Conduct as a result of my participation in a demonstration.

Your letter outlines “key points” of the complaint, to which this submission responds (below).

However, I remain concerned that I have not yet been provided with a copy of the original complaint despite previous request. I hereby reiterate that request. I assume that I will be provided with a copy of the complaint (as written to the General Manager, pursuant to clause 11.6 of the Code) in due course, and I reserve my right to comment on any other points that might emerge from my consideration of it.

The following addresses the six dot points outlined in your letter as “the key points of the complaint”.

1. That your recent conduct relating to a demonstration and subsequent arrest and conviction are a breach of the Code.

It is not entirely clear from this wording whether the reference to “conduct relating to [my emphasis] a demonstration and subsequent arrest and conviction” is intended to refer restrictively to the specific conduct here alleged (that is, the fact of my involvement in a demonstration and subsequent arrest and conviction), or whether some further alleged associated (but unspecified) conduct is also at issue. Having not seen a copy of the original complaint, I clearly cannot respond to an unspecified allegation, so the following comments are provided on the basis that the complaint alleges that I:

a) participated in a demonstration, and

b) was subsequently arrested and convicted.

I must assume from your letter that these allegations comprise the full extent of my alleged conduct canvassed in the complaint. I will address each of these points in this submission.

I accept that I did participate in a demonstration, and that I was subsequently arrested and convicted. However, I do not accept the complaint’s allegation that my conduct constitutes a breach of the Code of Conduct, and I believe that a finding of a breach on these grounds would be contrary to the letter and intent of the Code of Conduct, and would also set a dangerous precedent with serious implications for all councillors and councils, and for our democratic system.

2. (a) Your letter further states that the complaint alleges that the above conduct breaches clauses 6.1 and 6.2 of the Code (specifically referencing my conviction as an alleged breach of Clause 6.2), “and possibly others”.

This submission will address the allegations as they relate to 6.1 and 6.2 of the Code. I do not believe that my conduct has breached these clauses or any other clauses of the Code.

However, I clearly cannot respond to the complaint’s apparent speculation that my conduct may have breached other unspecified provisions of the Code, and I fully reserve my right to respond to any future consideration (during this or any other investigation) that my conduct may have breached any other specific provision of the Code.

Clause 6.1 of the Newcastle Code of Conduct states:
You must not conduct yourself in carrying out your functions in a manner that is likely to bring the council or holders of civic office into disrepute. Specifically, you must not act in a way that:
a) Contravenes the Act, associated regulations, council’s relevant administrative requirements and policies
b) Is detrimental to the pursuit of the charter of a council
c) Is improper or unethical
d) Is an abuse of power or otherwise amounts to misconduct
e) Causes, comprises or involves intimidation, harassment, or verbal abuse
f) Causes, comprises or involves discrimination, disadvantage or adverse treatment in relation to employment
g) Causes, comprises or involves prejudice in the provision of a service to the community.

It is not clear from the letter which – if any – of the seven subsections of this clause the complaint is alleging that I have breached.

However, I do not believe it is necessary in any case to address these subsections, since the wording of the stem clause itself (that is, the first sentence of cl.6.1) makes it clear that this section of the Code was intended to apply to council officials who are “carrying out [their] functions”, rather than to conduct that is not associated with the carrying out such functions.

[Note that Dictionary section of the NSW Local Government Act 1993 defines a “function” as including “a power, authority and duty”]. It was clearly not the intention of this section of the Code to cover conduct in which a person who happens to be a council official is acting in some other capacity (for example, as a private citizen, or a representative of another organisation), rather than in a capacity specifically associated with the council official's function.

The complaint (as conveyed to me through your letter) does not appear to explain how my conduct in this instance could be reasonably construed as occurring in the course of my “carrying out my functions” as a council official.

My participation in the demonstration cannot be reasonably construed as “carrying out my function” in the sense in which clause 6.1 intends. Clause 6.1’s various subclauses (for example, the specific references to “the Act and associated regulations”, “the council charter”, and to other local government-specific contexts), make it clear that the clause is intended to apply restrictively to conduct directly related to local government matters [note that much, though not all, of this section of the Code is based on Schedule 6A of the Act].

A finding that my conduct in this matter had breached Clause 6.1 would therefore have to be based on the grounds that the conduct that is the subject of the complaint involved me “carrying out my functions” as a councillor. Such a finding would be against the letter and intent of this clause, and would also raise unanswered questions with potentially serious unforeseen consequences (for example, If my participating in demonstrations is regarded as part of my functions, what support am I entitled to expect from council when I do this? If it were held that I was “carrying out my functions” as a councillor in this matter, would I be entitled to claim costs for legal representation or professional indemnity insurance from council? Where would the line between a council official’s involvement as a private person or ordinary citizen and their function as a council official begin and end in the application of this clause?)

My involvement in the demonstration that is the subject of the complaint was in my capacity as an individual citizen in a public interest demonstration against government inaction on Climate Change. I was one of a large number of other such citizens (including a Buddhist priest and an 86 year old man) who participated in a demonstration that did not involve Newcastle council, and was unrelated to any council function.

The demonstration took place on state government land and involved state government services and infrastructure. I and other demonstrators were arrested and subsequently fined under a state government Act (not the Local Government Act). I did not request or seek council’s support for my involvement in the demonstration, or in any of the subsequent legal proceedings, or in any other matters associated with the demonstration. I did not make any statements referring to council or to my role as a councillor.

It would clearly be preposterous for the Code of Conduct to be interpreted and applied to councillors so as to constrain them from exercising their ordinary rights of citizenship, including the right to participate in demonstrations – especially where such activities are not directly related to any council function. Such an interpretation would breach both the clear scope and intent of clause 6.1, and contravene basic principles of free speech and the right to freedom of political communication.

The application of certain provisions of the Code to the conduct of council officials outside their direct council functions (for example, in their private lives and in their lives as individual citizens outside their direct involvement with their council) is fraught with difficulty, and has already been the subject of much discussion among Newcastle councillors and the community. Fortunately, however, the wording of clause 6.1 avoids such difficulty by drawing a boundary around the scope of conduct that it is intended to cover: that is, conduct that is directly associated with a council official actually carrying out their official council function.

Clearly, this clause does not (and was not intended to) apply to circumstances such as my participation in a demonstration.

Even if this were not so, I do not believe that my conduct would meet the other threshold for a breach of Clause 6.1 contained in the stem sentence of that clause, since it was not conduct that would be “likely to bring the council or holders of civic office into disrepute”.

My participation in the demonstration, and my subsequent arrest and conviction, were clearly part of a nonviolent civil disobedience campaign that draws on a widely accepted and deeply rooted tradition in Western democratic culture. This was reflected in the relatively minor fine [$250] imposed by the magistrate on the participants in the civil disobedience action (note that I have appealed against the recording of the conviction).

The legal systems of western democracies (such as Australia) have long distinguished nonviolent civil disobedience from general unlawful conduct. Recent cases like the East Timor Ploughshares case, the Pitstop Ploughshares case and the Kingsnorth case have all upheld the “reasonable excuse” or “lawful excuse” defence, whereby people taking action in order to prevent a greater crime have been acquitted.

Nonviolent civil disobedience takes place within an established framework of democratic theory and action that is widely respected as playing a vital role in initiating significant progressive social change. Figures such as Nelson Mandela, Martin Luther King, Mohandas Gandhi, Henry David Thoreau, and the Suffragettes are now widely respected for having initiated significant social change through nonviolent civil disobedience.

Significantly, it is not them, but the wrongs they were opposing, that are now in disrepute. In fact, the use (or in my view, the abuse) of the Code of Conduct to suppress the right of councillors to engage in nonviolent civil disobedience would be much more “likely to bring the council or holders of civic office into disrepute” than any conduct of mine. The Code of Conduct was not intended, and should not be used, as an instrument of suppression in this way.

2(b) and 3. It is also alleged (as part of the second dot point, and dot point 3) that my conduct breached Clause 6.2 of the Newcastle Code of Conduct

Clause 6.2 of the Newcastle Code of Conduct states:
You must act lawfully, honestly, and exercise a reasonable degree of care and diligence in carrying out your functions under the Act or any other Act.

Again, I note that the complaint does not apparently explain how my conduct could be construed to come within the ambit of this clause, except for its reference to “an unlawful act”.

This clause (drawn from Section 439 of the Act) uses the same wording as clause 6.1 in specifying conduct related to a council official carrying out his or her functions under the Act or any other Act.

To the extent that I did act unlawfully in the course of the civil disobedience campaign in which I was involved, this was not pursuant to “carrying out [my] functions under the Act or any other Act”.

This clause therefore raises exactly the same issues and difficulties as clause 6.1 in relation to its scope, and its application to conduct that is not within what can be reasonably understood to be a council official’s “legal function”. If this clause were to be interpreted in a way that allowed it to be applied to any unlawful conduct at all, with no consideration as to whether the conduct was directly related to the exercise of a council official’s function, or even to its relative context and significance (for example, a parking or library fine), it would be rendered ineffectual as a way of enforcing its clearly intended – and entirely laudable - objective, which is to prevent council official’s from acting unlawfully in carrying out their official duties as council officials.

4. I am unsure how to respond to the statement (dot point 4 of your letter) that “Of significance is a quote in the Newcastle Herald where you allegedly stated that breaking the law ‘is setting an example’ and you advocate other elected representatives to do the same”.

The complaint (as reflected in your letter) does not appear to specify how such a comment might be “of significance”, and how it might be related to any alleged breach of the Code.

My reported comments which have been misquoted in the complaint (as reflected in your letter) were made in the context of the demonstration in which I participated, and in response to questions from the media about the involvement of elected representatives in such nonviolent civil disobedience actions. To take these comments out of that context in order to imply that I was referring in general to breaking the law is a gross misrepresentation.

It is clear that significant figures in history (Nelson Mandela, Martin Luther King, Mohandas Gandhi, etc) did set an example in the way they engaged in nonviolent direct action, and that the examples they set were important in initiating what is now universally regarded as progressive social change.

I do not believe it is necessary for the purpose of this submission to explain my reasons for believing that the failure of governments to deal adequately with the challenge of climate change now requires nonviolent direct action by caring citizens (including elected representatives), but I believe that elected representatives have the same right and responsibility as any other citizen to take action in response to injustice, and of course I would hope that elected representatives (as well as other citizens) would do the same. I don’t expect other elected representatives to agree with me on this, but I hardly see how it could provide the basis for finding a breach of the Code of Conduct.

5. The complaint (as reflected in your letter) goes on to state: “A Councillor is required to protest within the bounds of the law and cannot operate outside it or advocate it”.

This is clearly a statement of the complainant’s general opinion, rather than a reference to any specific provision of the Code of Conduct. As one would expect, the Code is silent – both directly and indirectly – as to whether a councillor can participate in nonviolent civil disobedience.

It certainly does not contain any provision that places any specific requirements on councillors in relation to their participation in protest – to do so would clearly place unreasonable constraints on the normal rights of citizenship for councillors.

In fact, as I have demonstrated above, the wording of the Code (certainly in clauses 6.1 and 6.2) carefully constrains the scope of application so as to avoid the obvious problems with expanding the reach of the Code beyond matters directly related to council, into the sphere of democratic and citizenship rights.

On the question of advocacy, the complainant is, of course, perfectly entitled to hold a personal view that a councillor should not advocate nonviolent civil disobedience as an instrument of progressive social change, but the Code of Conduct does not require me to share this view, and the Code of Conduct complaint process should not be allowed to be misused to censor advocacy for a form of action that is a recognised and respected part of the tradition of western democracy simply because some do not agree with the philosophy of nonviolent civil disobedience.

The Code and the Act do contain specific provisions that relate directly to circumstances where council officials act unlawfully, and appropriate legal remedies are available in such cases. I note that the complainant has not sought any of these remedies – in my view, because they are clearly not applicable to the circumstances of this case.

6. The final dot point of your letter states that “the complainant seeks action against me to make the point that notwithstanding the cause, Council cannot condone illegal actions by Councillors”.

Nothing that the council has done – before, during or since the conduct that is the subject of this complaint – could be reasonably construed as taking a position (either to condemn or condone) my conduct in this matter. Nor should it.

My conduct was not directed against, or in any way associated with, any council service or function. The council has no position on it, because it is simply – and quite properly – none of council’s business.

The complainant apparently seeks to change this, by using the Code of Conduct complaint process as a means of bringing the matter to council via the conduct review report that will arise from this investigation.

I regret such abuse of the Code of Conduct, and that this matter will come before council in this way (though I will certainly not shy away from presenting my views on the matter, if necessary, when it comes to council).

Rather than taking unwarranted action against me to make the spurious point urged by the complainant, I trust that this conduct review will make the point that this kind of misuse of the Code of Conduct for political purposes:
• imposes an unnecessary cost on Newcastle ratepayers
• costs councillors and the council valuable time
• risks bringing the Code of Conduct itself, and those who misuse it in this way, into disrepute

In my view, for the reasons outlined above, the complaint is totally lacking in substance, and should be dismissed without further ado.

I am concerned that it was not summarily dismissed by the General Manager in her preliminary assessment, pursuant to clauses 12.8 and 12.9 of the Code.

In making this preliminary assessment, the General Manager is required to apply the criteria in Section 13 of the Code. I cannot see how any preliminary assessment of the current complaint could reasonably conclude that it should be referred to a conduct reviewer.

I therefore request a copy of the General Manager’s referral indicating the specific grounds on which that referral was based (noting that the General Manager has indicated to me that I should direct any such requests to you).

Yours sincerely

Councillor Michael Osborne

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