I confirmed receipt of the "draft" report and that I would be sending in a response by the end of the week after the Easter long weekend (noting that I was going away with my daughters). The CoC reviewer replied that any response would have to be with him by the end of Wednesday at the latest because he wanted to get the report to Council on Thursday morning for inclusion in the Business Papers for the next Council meeting.
Not a single word of the "draft" report changed in the end. Here is my response below.
Dear Mr Smith
I write in response to your invitation to me (in your email dated 30 March 2010) to comment on the draft report that you have prepared for Council’s consideration arising from your investigation of a Code of Conduct complaint against me regarding my participation and subsequent arrest in a public protest on 20 December 2009.
I reiterate my concern at the limited timeframe given to me to consider your draft report, given that the draft report was received in the lead up to Easter and that I had informed you that I would be going away for Easter with my family. To ask for my comments to be with you by Easter Tuesday (which was also a Council meeting day) I consider unreasonable.
I do not agree with the report’s finding that my arrest and subsequent conviction constitute breaches of Clauses 6.1 and 6.2 of Newcastle Council’s Code of Conduct, or with the report’s consequent recommendation that Council censure me for these breaches.
In summary, my response to the report (outlined in more detail below) is that:
• The argument supporting the report’s finding relies on a highly contestable question of law in interpreting Section 232(2) of the Local Government Act (the Act) and its application to Clauses 6.1 and 6.2 of Newcastle Council’s Code of Conduct (the Code).
• The report’s argument also depends on a significant misapplication of those Clauses of the Code to circumstances that are not directly related to Council functions or activities.
• Furthermore, and notwithstanding the above concerns, the report focuses on matters that are peripheral or entirely irrelevant to the complaint and the alleged breaches of the Code.
• The report ignores the public protest and civil disobedience context in which my conduct took place.
• The report’s recommended sanction (a Council censure) against me is out of all proportion to any reasonable assessment of the nature of the alleged breach.
• Given the nature of its many deficiencies, the report conveys the impression that it was constructed to support a preconceived finding that reflects the author’s apparent personal prejudice against Councillors being involved in public protest and civil disobedience, rather than a professional and dispassionate assessment of the complaint itself, and the specific alleged breaches of the Code of Conduct.
If the report’s current detrimental finding against me is allowed to stand, I will certainly be pursuing channels of complaint and appeal available to me in order to clear what I believe would be a totally unjustified smear against my name.
This submission outlines my major concerns with the report, canvassing each of the matters I have raised above in more detail, in addition to a section commenting on some important ramifications that might arise for Council from its endorsement of the report and its findings.
If the report remains in its current form, I ask that this submission be included with the report in the relevant Council business papers distributed to Councillors and to the public. If the report is changed, I ask that I be provided with a further opportunity to comment on any such changes.
1. The report’s interpretation of s.232(2) of the Local Government Act
The report’s argument and finding against me turns entirely on a legal argument that my participation in the public protest in which I was arrested was pursuant to my role as a Councillor under Section 232(2) of the Local Government Act.
The final paragraph of the report encapsulates this point in asserting that “the conclusion can be drawn that Cr Osborne was undertaking his role as a Councillor in accordance with Section 232(2) of the Act [my emphasis] by participating in the protest and then publicly commenting on the matter...”.
This legal point is fundamental to the report’s detrimental finding against me since, if the conduct reviewer’s interpretation of Section 232(2) is incorrect and my involvement in the protest was not in my capacity as a Councillor but in some other capacity (for example, as a private citizen), then it necessarily follows that Clauses 6.1 and 6.2 of the Code could not apply to that conduct, and that I could not therefore be found in breach of these two provisions of the Code.
The timidity of the report’s wording (“the conclusion can be drawn...”) betrays the legal fragility of the central proposition on this key question of law that underpins the report’s argument and finding.
The interpretation of Section 232(2) of the Act in respect to its application to the involvement of Councillors in matters that are not clearly and directly to do with Council affairs or their dealings with Council staff is highly contested.
I am advised that there is no relevant case law on the application of Section 232(2) of the Act that would support the radically expansive interpretation of that Section advanced in this conduct review report, and that a number of legal opinions by lawyers with expertise in NSW local government law have strongly disputed the kind of broad interpretation of Section 232(2) that the report adopts, and on which its argument and finding depends.
My attention has also been specifically drawn to a recent Code of Conduct investigation in Tweed Shire Council in which a panel of three conduct reviewers found that a Councillor’s involvement in a public protest and associated court action in relation to the Repco Car Rally was entirely a private matter for the Councillor, and that she was not acting in her Councillor capacity.
Within Newcastle Council itself, questions have been recently raised about the extent to which Section 232(2) of the Act might provide the legal grounds for Councillors to release information to the public, in circumstances where such information related directly to Council matters and was provided to a Councillor by Council staff.
A previous conduct reviewer (Ms Kath Roach) proposed a series of changes to the Council’s Code of Conduct that were predicated on a very restrictive interpretation of Section 232(2) that would be entirely at odds with the radically expansive interpretation on which your report and finding relies. Your radically expansive interpretation would extend the reach of Section 232(2) even to matters entirely unrelated to a Councillor’s involvement with Council functions.
It is not my intention here to argue which interpretation of Section 232(2) of the Act is correct. This is a matter for the courts. My point is rather that the application of Section 232(2) of the Act in relation to the rights and responsibilities of Councillors is a highly contested and unresolved question of law, and that a detrimental finding against a Councillor in relation to a Code of Conduct complaint should not rely on one particular interpretation of that Section that is unfavourable to the respondent, as your current draft report does.
The report is not informed by any relevant legal precedent or advice that would support the interpretation of Section 232(2) of the Act on which its argument and finding relies.
Essentially, without even so much as a reference to any relevant legal advice or case law, a (legally unqualified) conduct reviewer has presumed to rule on a significant, highly contested and unresolved question of law in finding that Section 232(2) applies to situations in which Councillors are involved in matters (in this case a public protest) that are not directly related to the Councillor’s dealings with Council or to a Council function.
Given such demonstrable doubt about a key question of law on which the finding of this Code of Conduct investigation hinges, the approach taken in this report (that is, to effectively rule on the question of law as the basis for a detrimental finding against me) raises serious questions about the quasi-judicial role of conduct reviewers generally (especially in relation to their professional competence to understand and rule on questions of law), and about the extent to which this particular conduct reviewer has considered and applied the principle of the presumption of innocence in this case.
In matters where there is legitimate doubt about whether a Council official is acting in their official capacity or not in any particular case, clearly the presumption of innocence should be applied so as to give the Council official the benefit of the doubt.
In my view, the application of the presumption of innocence should surely take precedence over a speculative and radical interpretation of a highly contested and judicially unclear Section of the Local Government Act by a legally unqualified conduct reviewer who offers no support for that interpretation by way of argument, evidence or reference to appropriate expertise or case law.
I have no recollection of the conduct reviewer indicating during our interview that the interpretation of Section 232(2) of the Act might play such a determinative role in the investigation and finding of his report. I regret that the reviewer did not raise this matter more prominently during that phase of the investigation, so I could raise and discuss with him the range of concerns to which I have referred in this submission.
Despite its reliance on this interpretation of Section 232(2) of the Act, comments in the report itself appear to concede at least the possibility that my involvement in the public protest and subsequent arrest might have been in my capacity as an individual rather than in my capacity as a Councillor.
For example, the report states – in relation to my conduct – that it does not question “the legitimacy of undertaking a protest”, and comments that “it is the right of every individual to publicly display their views...”, a comment that would have no relevance to the matter at hand except as a reference to the possibility that I might have been exercising such an individual right.
The report contains a significant number of references to an article written by me and published in The Herald on 22 December 2009 (two days after the protest), to which it appears to give significant status in the determination of the complaint.
The report also quotes extensively from Council’s Media Policy, insinuating – though not explicitly asserting or formally finding – that my handling of The Herald article breached that policy. The Herald article was the subject of considerable discussion during my Code of Conduct interview.
The Herald article was not the subject of the complaint (except in relation to the complaint’s reference to alleged comments in the article that the conduct reviewer concedes are not correct), and is not relevant to the report’s finding that “in being arrested and convicted of an unlawful act” I allegedly breached Clauses 6.1 and 6.2 of the Code.
If I breached these Clauses of the Code by virtue of “being arrested and convicted of an unlawful act” (as the report concludes), this would presumably be so whether I wrote an article for The Herald or not.
The report does not find that my writing The Herald article itself constituted a breach of the Code, or that anything in the content of the article constituted a breach of the Code. Whilst the report does assert that I erred in a number of respects in relation to this article, none of these assertions are reflected in either the complaint itself, or in any finding in the report that the article breached any provision of the Code.
The comments about The Herald article appear to reflect the desire of the reviewer to offer his opinion on matters that he personally regards as important, but that are peripheral or irrelevant to the complaint and to the associated findings of the alleged breaches of Clauses 6.1 and 6.2 of the Code.
Comments such as “given the arrest and probable conviction, at that point in time the best course of action for him would have been to not comment at all” may be well-intentioned advice, but they are not relevant to the specific complaint or to the alleged breaches.
The report’s statements that I “made no effort to draw the distinction between his role as a Councillor and that as an individual” and that “there was no attempt to dissociate the arrest at the protest and his role as a Councillor” are also similarly irrelevant. Whilst I do not accept these statements, the issue they address was not the subject of the complaint, and the report does not find that the conduct it alleges on my part breached any provision of the Code.
Similarly, the report’s lengthy reference to Council’s Media Policy appears to be responding to a non-existent complaint as to my compliance with that policy in relation to The Herald article, rather than to the complaint that initiated the investigation.
I do note, however, that these comments again implicitly concede the possibility that I might have participated in the public protest as an individual rather than as a Councillor. The report appears to be arguing here that if I had, in fact, “made an effort to draw a distinction between my role as a Councillor and that as an individual”, such an action may have made some difference to my alleged breaches of Clauses 6.1 and 6.2 of the Code. This is legal nonsense. A breach by a Council official of either of these Clauses cannot depend on whether the official him/herself draws a distinction between their official role and their individual role; the capacity in which a Council official is acting at the time of the relevant conduct must obviously be established as a legally objective fact in terms of any alleged breach of these Clauses.
Furthermore, it does seem oddly inconsistent that, on the one hand, the report finds that I was acting in my capacity as a Councillor rather than as an individual during the public protest (as the basis for finding me in breach of Clauses 6.1 and 6.2 of the Code), and then, on the other, actually criticises me for allegedly failing to clarify that I was participating in the public protest in an individual capacity, rather than in my capacity as a Councillor.
I believe that these comments – and the significance placed on The Herald article and Council’s Media Policy – reflect a general lack of rigour and focus in the report’s line of argument.
2. The expansive interpretation of Clauses 6.1 and 6.2 of the Code of Conduct
The second – and related – layer of legal argument on which the report’s detrimental finding relies is that the reference to a Council official’s “functions” in Clauses 6.1 and 6.2 of the Code of Conduct should also be interpreted so expansively as to include matters that are not even associated with a Council function.
The report’s approach to interpreting these Clauses reflects the radically expansive interpretation it applies to Section 232(2) of the Act.
Clearly, if the report allowed for the possibility of a more restrictive view of Section 232(2) (that is, one that precluded or placed limitations on its application to matters not directly related to Council affairs), it could not logically arrive at the current detrimental finding, since such a restrictive interpretation would conclusively exclude consideration of such conduct as a relevant “function” under the Act.
However, it is important to note that the converse is not true: an expansive interpretation of Section 232(2) does not necessarily lead to an expansive interpretation of Clauses 6.1 and 6.2 of the Code.
The conduct report appears to assume that if Section 232(2) of the Act is interpreted so as to include conduct outside the Council realm, it automatically follows that Clauses 6.1 and 6.2 should be so interpreted. This is a simplistic and legally dubious approach, which has again been taken without any apparent recourse to a body of appropriately qualified legal opinion or expertise.
The wording of Clauses 6.1 and 6.2 makes it clear that they apply restrictively to conduct associated with a Council official performing a “function under the Act”.
By this means, these two provisions attempt to make it clear that their appropriate application is to the professional and official spheres of a Council official’s life, when they are acting pursuant to Council functions, and not to conduct that lies outside that sphere, in the realm of the private citizen. They attempt to appropriately limit the application of the provisions, so that conduct by a Council official that is not associated with a “function under the Act” is clearly excluded from their ambit.
The particular wording of these Clauses, the examples given in the Code itself of the kind of conduct to which they are intended to apply, and the explanatory material provided by the Department of Local Government to assist Councils and Council officials to understand and apply the Code of Conduct, all suggest that these provisions were intended to apply to conduct in which Council officials are carrying out functions directly related to a Council’s legal responsibilities.
The wording of these provisions of the Code suggest that they were drafted primarily with Council staff in mind, and that a restrictive application of the Clauses might therefore be more appropriate in relation to their potential application to Councillors engaged in non-Council activities. None of the examples given in these provisions of the Code, or in any relevant explanatory or interpretive material from the Department of Local Government provide any support for an expansive interpretation of these provisions to conduct in which a Council official is engaged in non-Council matters.
Despite the centrality of such considerations to the argument and conclusions of the conduct review report, the conduct report itself provides no evidence that the conduct reviewer has considered the issue of whether Clauses 6.1 and 6.2 of the Code should be interpreted and applied restrictively or expansively.
This is of particular concern given that fact that I specifically raised this issue in my original submission. As with Section 232(2) of the Act, the conduct review report takes the most radically expansive interpretation that it is possible to take regarding the potential application of Clauses 6.1 and 6.2 of the Code to matters outside the Council sphere, without any argument, evidence, or authoritative reference in support of such an interpretation, and in the face of strong indications that it might not be prudent to do so.
Again, the reviewer’s argument and conclusions (including the detrimental finding against me of breaches of Clauses 6.1 and 6.2 of the Code) appear to rely on an unsubstantiated interpretation that is seriously open to question. Again, too, the reviewer has shown little apparent regard for the presumption of innocence that is usually applied in matters where there is considerable interpretive doubt about such matters.
3. Public protest and Civil Disobedience and issues of disrepute and improper, unethical or unlawful conduct
The final layer of the report’s argument in support of its conclusion that I breached Clauses 6.1 and 6.2 is that, in being arrested, I was carrying out my functions “in a manner ... likely to bring the Council or holders of civic office into disrepute” [Clause 6.1], and that I breached Clause 6.1(c) by acting in a way that “is improper or unethical” and Clause 6.2 by not acting “lawfully” in “carrying out my functions”.
Even if the first two central propositions of the report’s argument are accepted (that is, in relation to its radically expansive interpretations of Section 232(2) of the Act and of Clauses 6.1 and 6.2 of the Code), the allegation of a breach of Clause 6.1 should fail on the basis that there is no evidence that being arrested as part of what was clearly a civil disobedience protest is “likely to bring the Council or holders of civic office into disrepute”.
Without argument or evidence, the report simply assumes – a priori – that any illegality committed by a Councillor will necessarily have the effect of bringing Council or holders of civic office into disrepute.
This value judgement appears to be based on the conduct reviewer’s personal assumptions and preconceptions, rather than any objective evidence. Such a view might be reasonable in respect to ordinary offences, but it totally disregards the civil disobedience context in which the public protest and my arrest took place.
Here, the report completely ignores the arguments in my original submission in relation to actions that sit within a clearly defined and widely accepted tradition of civil disobedience. Apparently, the reviewer has not seen the relevance of such considerations to the question of whether conduct that breaks a law might be “likely to bring the Council or holders of civic office into disrepute”. This may reflect a general problem with selecting conduct reviewers whose backgrounds are in management rather than in politics, civil law or public affairs to investigate complaints such as this, which require an understanding of the important difference between an ordinary unlawful act and one committed as part of a civil disobedience action. This distinction appears lost on the author of the conduct review report.
No doubt some members of society do take a negative view of the use of civil disobedience as a means of protest, and do not understand the difference between civil disobedience and ordinary offences.
However, as my original submission points out, the tradition of public protest and civil disobedience and its place within the systems of law and governance of liberal democracies is long established, well documented and widely accepted, and is supported by a significant body of knowledge in the disciplines of politics, history and jurisprudence.
Prominent and widely respected figures such as Henry Thoreau, Mohandas Gandhi, Martin Luther King, and Nelson Mandela were all arrested and spent time in jail after being arrested for breaking laws as part of a wider campaign of civil disobedience in support of their causes.
At the time, they were criticised by those who argued – like the conduct reviewer in this report – that their causes did not justify their actions in breaking the law. Today, they are all universally respected for the courage they displayed in doing this. More recently, Nobel Peace prize winner Al Gore called for civil disobedience in relation to the specific failure of governments to act to adequately address climate change and coal dependency.
In liberal democracies such as ours, courts have traditionally recognised the distinction between civil disobedience and ordinary offences in the way they handle these cases, and this was reflected in the lightness of the fine imposed in this particular case ($250 for an offence for which the maximum penalty is $5,500).
The many expressions of support I have received in this matter since it entered the public domain indicates that a significant number of ordinary people do see and appreciate this distinction, and would certainly not agree with the proposition that justified civil disobedience brings disrepute to those who practice it or support it, or that it constitutes improper or unethical conduct.
The report itself acknowledges that “many people would no doubt agree with Cr Osborne’s views which were portrayed through his involvement in the protest”, and then concludes, oddly, that “that in no way mitigates the consideration of the matter”.
In fact, the distinction between an ordinary offence and one committed as part of public protest and civil disobedience is almost universally regarded in the legal system as just such a mitigating factor in consideration of such matters.
The report does not explain how it can hold the seemingly illogical position that a positive public perception of my involvement in the protest is not relevant to the question of whether that involvement was likely to bring Council or Council officials into disrepute, or whether public protest and civil disobedience in itself constitutes “improper” or “unethical” conduct, as the report clearly and uncritically assumes.
4. The proposed censure sanction
Clearly, since I do not agree with the report’s finding that I breached the Code, I also do not agree with its consequent recommendation that I be censured.
Notwithstanding this, however, the severity of the report’s proposed sanction against me does appear to be out of all reasonable proportion even to the alleged breach of the Code, considering the significant mitigating contextual factors involved (especially the fact that the public protest and arrests were clearly part of a civil disobedience action).
A censure against a Councillor is the most severe sanction that a Council can impose on a Councillor for a breach of the Code of Conduct under Clause 14.8 of the Code.
Here, it is relevant that the fine imposed on me by the court was $250 for the offence of “remaining on running lines or associated part of any rail infrastructure” (under the Rail Safety (Offences) Regulation 2008), for which the maximum fine is $5,500.
The court therefore applied a sanction against me that represented less than 5% of the potential maximum sanction.
The scale of the fine was comparable with the scale of a number of parking fines, and is well inside the range of fines generally imposed for “minor offences”.
Conversely, the conduct review report recommends that Council impose the most severe sanction available to it, without any attempt to explain or justify such a recommendation.
It would be reasonable to ask whether this recommendation reflects the conduct reviewer’s personal prejudices in relation to Councillors engaging in public protest and civil disobedience, rather than any fair and reasoned assessment of the seriousness of the alleged breach.
The entire report – with its radically expansive interpretation of Section 232(2) of the Act, its uncritical application of Clauses 6.1 and 6.2 to conduct that is completely outside a Council “function under the Act”, its failure to apply the presumption of innocence where there is clearly considerable doubt about key questions of law, its consideration of matters that are peripheral or entirely irrelevant to the complaint and the alleged breaches of the Code, its failure to appreciate or consider the civil disobedience context of the conduct under investigation, and its unexplained recommendation that Council impose the most severe sanction available to it – creates the impression that it was constructed in order to justify a preconceived outcome reflecting its author’s personal views about Councillors engaging in public protest and civil disobedience, rather than a dispassionate, professional consideration of the complaint in relation to its specific allegations, and its particular legal, evidential and contextual dimensions.
This exposes the entire report to the risk of challenge on the grounds of apprehended bias.
Upholding such a finding is likely to bring both Council and the Code of Conduct itself into disrepute, to the extent that both would be seen to be supporting unreasonable attempts to prevent or constrain Councillors from engaging in public protests and civil disobedience, even where they do so in relation to issues and matters with which Council itself is not directly involved.
5. Wider implications of the report’s interpretation of Section 232(2) for Council
Council should be acutely aware of the potential wider ramifications of accepting the radically expansive interpretation of Section 232(2) of the Act adopted in this report.
If Council accepts the report’s radically expansive interpretation of Section 232(3) of the Act to mean that a Councillor is carrying out his/her official function under the Act even whilst involved in matters that are not directly concerned with Council affairs (such as a public protest action), consistency would demand that the same interpretation must be applied to Council policies other than the Code of Conduct.
This has particular and important implications, for example, for the application of Council’s Policy for the Payment of Expenses and the Provision of Facilities for Councillors.
The precedent would significantly change the scope of that Policy in terms of its coverage of activities that would previously have been considered to be undertaken by Councillors in their private capacity.
Clause 7.2 of that Policy states that it “is intended to cover most situations where a Councillor reasonably incurs expenses in discharging the functions of civic office” [my emphasis].
Under the conduct review report’s radically expansive interpretation of Section 232(2) of the Act, a Councillor’s involvement in activities such as a public protest would be considered as “discharging the functions of civic office”, and would therefore create a legal right of access for such a Councillor to the various expense and facility benefits to which the policy entitles Councillors in such circumstances.
Councillors would then be entitled to a reasonable expectation – under the terms of the Policy – that Council would reimburse travel expenses to and from public protest actions (Clause 8), and cover the costs of care (Clause 20.1), special costs (Clause 21.1), insurance expenses (Clause 22.1), and certain legal expenses (Clause 23) incurred as a result of their participation in a public protest action. It would also provide the basis for Council assistance with correspondence on such matters for Councillors (Clause 28).
The potential financial impact of this on Council is considerable, especially since it could involve Council covering costs such as those associated with Councillors defending defamation actions arising from comments they might make in good faith during public protests, or any insurance or professional indemnity costs resulting from damages claims associated with a Councillor’s involvement in such activities.
This submission does not argue that Council’s Policy for the Payment of Expenses and the Provision of Facilities for Councillors should provide such assistance to Councillors, but such a conclusion appears to flow as a necessary logical consequence of Council’s acceptance of the conduct review report’s radically expansive interpretation of Section 232(2) of the Act, and of Clauses 6.1 and 6.2 of the Code.
It is a matter of record that during my long involvement in community-based progressive social change activities, including public protests, I have never sought any assistance from Council to cover my expenses in such activities, because I do not believe that the Policy’s reference to Councillors “discharging the functions of civic office” was ever really intended or understood to apply to matters such as Councillors’ participation in public protests in which Council itself is not involved, just as I have never understood the similar references in Clauses 6.1 and 6.2 to apply to such matters.
Council’s acceptance of the conduct review report’s radically expansive interpretation of Section 232(2) of the Act, together with its uncritical acceptance that Clauses 6.1 and 6.2 apply to the activities of Council officials in matters outside Council affairs, would thus represent a significant precedent that would change the scope of Council’s Policy for the Payment of Expenses and the Provision of Facilities for Councillors in a way that could expose Council to legitimate claims for financial and legal assistance in matters that were never intended or considered in drafting the policy (just as I believe the application of Clauses 6.1 and 6.2 of the Code to such matters was never intended or considered by those who drafted them).
Councillor Michael Osborne