22 May 2018

In today’s age of pervasive communications technology there is a plethora of social media platforms available at our fingertips, enabling us to communicate our message, views and opinions to hundreds, if not thousands of people with relative ease. However, if you are an Elected Member of a Local Government, think twice before you press send as what you say on social media may have unintended consequences.

It is generally well understood that Elected Members should act impartially and objectively in carrying out their elected duties. What is often not so well understood or remembered, is that during a term of office, an Elected Member is always an Elected Member and must present him or herself accordingly at all times.
Given the instant and unfettered access to social media, it is often all too easy for an Elected Member to be drawn into commenting on decisions and proposals of Council in that public forum which, in doing so, may cast adverse reflections on fellow Elected Members. This may in turn result in a breach of the Local Government Act 1995 and more specifically, the Local Government (Rules of Conduct) Regulations 2007 (Rules of Conduct Regulations).

Conduct complaints also stem from a failure to appreciate the significant difference between speaking for one’s-self, and speaking on behalf of Council. In Local Government, it is the role and responsibility of the Mayor or President to speak on behalf of the Local Government. Care must be taken to avoid any implication of a personal view or comment being mistaken for that of Council.

Despite the above prohibitions, it is also often queried whether there is a general right of free political speech and therefore any protections that may be available to Elected Members.

First, it should be noted that the concept of absolute privilege – that is, Parliamentary Privilege as available in State and Federal Parliament – does not apply to Local Government. Elected Members do not have at their disposal the option of pleading absolute privilege or immunity from defamation proceedings. At best, their privilege is qualified under s.9.56 of the Local Government Act 1995 (the Act).

Whilst s.9.56 of the Act may protect an Elected Member against the consequences of anything the Elected Member has done in good faith and in performance of a function under law, if an Elected Member chooses to use social media as a platform for communication, it is recommended that they should plan ahead and carefully consider what they say and what information they disclose. Without careful thought, planning and preparation, an Elected Member may be running the risk of inadvertently disclosing confidential information (breach of regulation 6 of the Rules of Conduct Regulations) or may, by communicating information improperly, be seen to be using their position to gain directly or indirectly an advantage for him or herself or any person, or even causing detriment to any person or the Local Government (resulting in a breach of regulation 7 of Rules of Conduct Regulations). A majority of conduct issues can likely be distilled to either a failure to maintain proper confidentiality, or improper use of office, as set out in the Regulations.

Second, although the Courts recognise an implied freedom of political communication, the freedom is not a personal right. The right is intended to regulate the making of laws that would otherwise impair free political speech, and laws with other legitimate purposes are not considered incompatible with such rights. The implied right also does not protect all political. statements and cannot be used as a defence of a breach of law – including the Rules of Conduct Regulations.

Further, an Elected Member should consider when posting or commenting on the Local Government’s Social Media platform, whether their actions may potentially breach regulation 8 of the Rules of Conduct by misusing Local Government resources – as the Local Government’s social media platforms are the property of the Local Government.

In order to avoid potential damage to their reputation and to the reputation of the Local Government, it is recommended that Elected Members thoroughly familiarise themselves with all relevant sources of their obligations and to seek advice early, in the event of any uncertainty.

MARCUS HODGE | NIA LUMLEY | As published in the Western Councillor Magazine 

This is general information only and does not constitute specific legal advice. If you are concerned for yourself or a member of the community, please contact HHG Legal Group on we.help.people@hhg.com.au to book a 15 minute appointment at our free legal assistance clinics.

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