When Councillors or Council staff are out of line: New model policies for local councillors and staff
Local councils are an important part of our system of representative government. As with other representatives, it is reasonable to expect that our local councillors will be held to a high standard of accountability. Unfortunately, sometimes councillors can fall short of the community’s expectations as the transition to online and remote meeting platforms has exposed. The increase in council meetings being held virtually appears to have shed greater light on instances of meltdowns, bullying, and online trolling occurring during council meetings.
In early April, the NSW Office of Local Government (OLG) finalised and released two new model conduct policies for NSW local council officials. The first policy is a Model Councillor and Staff Interaction Policy. The second policy is a Model Social Media Policy. Although neither policy is specifically directed towards recent misconduct, it is likely much of that conduct would fall within their scope.
However, the new policies will not apply to local council officials unless and until they are adopted by their local council. Once those policies are adopted, council officials can be disciplined for breaching them under the Model Code of Conduct for Local Councils in NSW and the Local Government Act 1993 (NSW).
Model Social Media Policy
The Social Media Policy is completely new and covers a wide range of topics. It is guided by an overarching set of principles; provides various administrative models for social media management (from a local council level down to personal social media accounts); prescribes social media standards of conduct, including during emergencies; and gives information about complaints processes.
Although the Social Media Policy is lengthy, there are some interesting features to note.
The first notable provision is that council officials must provide a link to a set of ‘House Rules’ for engagement with their profile that can be accessed by users. Clearly setting out the rules of engagement and the consequences of breaching them is designed to foster accountability and consistency in online content moderation, ensuring that freedom of engagement is balanced with the need to ensure that engagement is respectful.
In the past, some local councils have been criticised for attempting to institute policies preventing councillors from speaking to the media without prior approval, and requiring media statements to be consistent and respectful of the council’s position. The OLG has taken a more conservative approach. It requires council officials to include a specific disclaimer on their social media profile that the views they express are their own, and not that of their Local Council and, during and after emergencies, mandates consistent messaging.
The third notable provision is related to a 2021 High Court case holding that social media users can be held responsible for defamatory comments made on their posts and pages.  A portion of part 5 of the policy addresses this issue by providing for the removal and hiding of content posted to the platform of council officials by third parties. Council officials are also required to exercise caution when sharing, liking, and retweeting content, as this may also be considered publication and expose council officials to responsibility for defamatory material.
Some of the provisions—including those prohibiting council officials from using their social media to harass, bully and discriminate—merely replicate existing policies contained or covered by the Model Code of Conduct. They also overlap with the portion of the Interaction Policy which details appropriate and inappropriate behaviours.
Model Councillor and Staff Interaction Policy
The Interaction Policy sets out (1) guidelines for requesting information relevant to a staff member’s functions, (2) processes for access to staff members, and (3) appropriate and inappropriate behaviours.
By providing an explicit statement of the Council’s information request and staff member access policies, the intention is to increase the effectiveness and efficiency of interactions between staff members. Although the portion of the Interaction Policy that deals with inappropriate and appropriate behaviours again only replicates existing policies in the Model Code of Conduct, hopefully a more explicit and obvious statement about staff interaction will reduce alleged instances of inappropriate behaviours and bullying within the Council.[3 It remains to be seen whether this will be effective.
 Fairfax Media Publications Pty Ltd v Voller (2021) 95 ALJR 767, holding that Fairfax Media was a publisher of comments made on its Facebook post by third-party users.
 In Latrobe City Council, the general manager recently quit after safety concerns stemming from alleged workplace bullying and intimidatory behaviour. This issue extends overseas too: Torbay councillor apologises after bullying officer.
This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.