Code should enhance not dampen democracy

Published in The Mercury, November 2017

People often ask me why their representatives on Council aren’t more outspoken about the big issues that shape our city.

This can be frustrating for residents who expect their elected representatives to express opinions on their behalf.

Part of the answer lies in how Tasmanian Aldermen (and Councillors) are regulated by the Local Government Act 1993, which was amended in 2016 to introduce a new Model Code of Conduct.

Aldermen are required to comply with the Model Code of Conduct, that sets guidelines about behaviour and responsibilities for elected decision-makers.

It’s timely that the Code will be reviewed in the coming months, because currently the wording is vague, contradictory, and can be used by political opponents to intimidate and discourage Aldermen from speaking openly in their role as community representatives.

The Code is more than just a guide for representatives – it’s tethered to a complex complaints process. Within six months of an alleged contravention, anyone can lodge a complaint about an Alderman. Complaints can challenge bad behaviour or misuse of office, which is a good thing. However, it becomes more problematic when complaints are based on subjective judgements.

For example, it’s important the Code says that Aldermen must “make decisions solely on merit and not take irrelevant matters or circumstances into account when making decisions” and to “act openly and honestly in the public interest”.

The problem is, without clear definitions, interpretations of what is an ‘irrelevant matter’ or when behaviour is in the ‘public interest’ will differ between Aldermen and others with an interest in the decision involved.

The Code also says Aldermen must “bring an open and unprejudiced mind to all matters being decided upon, and make decisions free from personal bias or prejudgement.”

This suggests that Aldermen should avoid having strong convictions and opinions on policy issues before they make a decision – an idea at odds with what many in the community expect when they elect a representative. It also contradicts other requirements in the Act for Aldermen to outline their policies at election time, to enable voters to make an informed choice.

The Code also attempts to assist Aldermen to deal with conflicts of interest, but ends up raising more questions than it answers. It rightly asks Aldermen to not be “unduly influenced, or seem to be unduly influenced by personal or private interests”.

It requires Aldermen to identify any “actual, potential or perceived conflicts at any meeting” and to “exercise reasonable judgement to determine whether a conflict is so material that it requires removing himself/herself physically from any Council discussion.”

This all sounds reasonable, but leaves too much room for different interpretations that could be used to slur or silence a political rival.

Let me give you an example from personal experience. Earlier this year, Council sought comment from the community about changes to the building height standards in the planning scheme for Hobart’s CBD. I proposed amendments at the time, which were not supported by the other Aldermen.

Along with 180 other people, I made a submission as an Alderman to the Tasmanian Planning Commission. When the time came for Council to consider the public comments, I declared a perceived conflict of interest (because I had made a submission) and chose to remove myself from the discussion (by sitting in the public gallery). Now with the weight of public opinion behind the same amendments I had originally proposed, a majority of Aldermen voted for them.

Taking a conservative approach, I declared a perceived conflict (although there was no actual conflict in that I received no personal or private gain). I did not vote on the matter. My course of action was entirely in line with the requirements of the Code. But some people, whether by design or through misunderstanding, were publicly critical and suggested I had acted inappropriately.

On the one hand, Aldermen need to be fair and not biased for or against any proposal that would prevent them from assessing it under existing laws.

On the other, Aldermen also have a legal role to hear from, and represent, a wide range of perspectives in the community. We need to inform ourselves and express opinions in the process of creating new laws.

We need a strong Code that prevents misconduct. However, a poorly drafted Code that can be used to intimidate representatives into silence about community concerns is a perverse outcome.