Some Hepburn Shire Councillors would like have more freedom to participate in controversial local debates to explain their views and arguments. But they have concerns they are being stifled by their own Code of Conduct.

The Victorian Local Government Act requires that each Council develops a Councillor Code of Conduct. Councillors who breach the code may be required to apologise or they may be suspended for a month, financially penalised and removed from positions they hold. They may also be required to undergo training or counselling.

The Hepburn Shire Councillor Code of Conduct acknowledges that ‘individual Councillors are entitled to express their personal opinions through the media’ provided they make it clear it is their personal view and not the position of Council.

Understandably, Councillors are also required to make sure any public comments are not ‘derogatory, offensive or insulting to any person’ although these issues are already covered by defamation and anti discrimination laws.

More controversially and confusingly, the Code goes on to say that the appropriate time and place for communicating divergent views is in the Council Chamber, implying that Councillors should not make public comment even when the have strong views and reasoned arguments that diverge from Council decisions. Councillors have also been advised to refrain from criticising a majority decision publicly even when they do not support it. 

This constraint is exacerbated by Council’s meeting rules which limit each councillor to addressing any topic, no matter how important, to only three minutes.  At least one councillor regularly complains that meeting minutes fail to adequately capture on record the rationale behind decisions.

Community groups like Rethink the Rex (now Hepburn Matters) have expressed the view that Council consultation processes are limited and inadequate on important issues like a Daylesford community hub.

There are also concerns within Council that, in the absence of proper debate and accurate, comprehensive information, the community is left in the dark, allowing misinformation and hostility to flourish.

Lack of information and engagement on important public issues has led to community discontent. Recent controversies about Council decisions, particularly in relation to the future of the Rex, have been compounded by the unwillingness of individual Councillors to enter into the public debate.

While the Councillor Code of Conduct says free speech and debate are encouraged, it prohibits personal and public criticisms of Councillors, staff and the organisation and that such conduct will be a breach of the Code of Conduct.

Victorian Government legislation also limits what Councillors can say, particularly in relation to planning matters. They cannot participate in these decisions if they have publicly declared predetermined views.

There are also a range of legal and ‘commercial-in-confidence’ matters that cannot be disclosed and debated publicly. This includes the local government inspectorate report on the Rex that has still to be released despite repeated calls for the Chief Municipal Inspector Michael Stefanovic to do so.

Council policy also appears to limit the extent to which individual Councillors can go out and explain Council decisions in the community, even if they support them. Formally, the Mayor and the Chief Executive Officer are responsible for promoting and explaining Council decisions in public debates. This is more difficult when they are on the record as having opposed decisions that have been adopted by Council, as occurred in relation to the Rex.

Some Councillors appear better at managing the constraints of their own Code than others. They have used the Council’s formal debate rules to register their dissent. And several Councillors have published opinion pieces, engaged on social media and made media appearances on Council matters that have significant community interest.

But generally, Councillors appear to have interpreted their own Code of Conduct cautiously assuming that public divergence from Council decisions outside of Council meetings may constitute a breach of the Code. The balance between transparency and confidentiality remains a challenge for Councillors.

The Wombat Post understands the Council Governance rules are under review, allowing for an opportunity to revise and clarify the Code of Conduct so Councillors do not feel unreasonably constrained to participate in public debate on Council matters.