The ‘Gag’ Order Myth

LG Leader September 2019

You will be aware of the recent string of media articles suggesting that council policies are being put in place in an attempt to ‘gag’ elected members, or to otherwise prevent members from expressing an opinion in relation to Council business. The reality, in fact, could not be further from the truth.

Whether we like it or not, social and electronic media play a vital role in modern day communications, and councils use these tools daily to enhance the reach of connections with its local community. Accordingly, we have seen an increase in the number of complaints made against Council members and employees, based on the use of social media. In many instances, this occurs, simply, because the individual has not turned his/her mind to their obligations and has inadvertently posted or sent material, or not qualified material, as they should.

Due to this, oversight bodies are taking an increasing interest in the use of social media by Council members (in particular) to transact council business, and the lack of a policy position to appropriately aid and guide members has been the subject of criticism from such bodies. Indeed, it is to be noted in the Minister’s Reform Paper, at Reform Area 1, it is suggested that legislation be amended to ensure members use only ‘official council communication methods (e.g. e-mails) for official council functions and duties.’

The inherent risks associated with the use of social media as a communication tool has most recently been highlighted in the case of Voller, where the Court concluded that when a person operates an electronic bulletin board, such as a public Facebook page, the ‘owner’ may be held liable for defamatory material posted in third-party comments.

It is against this background that many councils are choosing to adopt a social media, or other electronic communication, policy. The alleged ‘gagging’ of elected members that has been the subject of recent reports is, in reality, nothing more than a re-statement in those policies of the obligations on members that already exist under the Code of Conduct for Council Members, which has been in force since August 2013.

The other noticeable absence from the media hype is that such policies equally apply to employees.

The imperative for councils is not on ‘gagging’, or otherwise preventing, Council members from interacting with community members, or from sharing a view regarding council matters, but rather, on ensuring that all council communications are conducted in a respectful manner, that serves to generate community trust and confidence in the council.

If your council would like further information or training on this topic, or otherwise assistance in preparing or reviewing a social media policy or procedure, please contact Tracy Riddle on 08 8113 7106 or  at triddle@kelledyjones.com.au.