1. On 15 August 2013, Dr Julian Fidge, a general practitioner and then councillor of the Wangaratta Rural City Council (the Council) applied to VCAT under the Local Government Act 1989 (the Act), seeking review of a decision by a Councillor Conduct Panel (the Panel) dated 12 August 2013; made under the Act.
2. The Panel had made misconduct findings against Dr Fidge, primarily related to his critical statements in the public arena while a councillor, about the performance of other councillors and senior council staff. It directed Dr Fidge to take a two-month leave of absence from Council and attend five counselling sessions.
3. On 25 September 2013, under the Local Government (Rural City of Wangaratta) Act 2013, the Victorian Parliament dismissed the Council due to, "a profound and systemic failure by the council to provide acceptable standards of government to the municipality of Wangaratta".[1] According to the Joined Parties' counsel, the conduct relevant to this proceeding was a sub-set of that which gave rise to the dismissal.
4. Therefore, the Applicant and Joined Parties are no longer councillors. I refer to them using the terms Dr, Ms and Mr. The context tells who was a councillor at the time.
5. I heard the VCAT application from 11 August 2014. All parties were legally represented, as were the Joined Parties. The Joined Parties, Atkins, Joyce, McInerney and Parisotto were the applicants in the Panel proceeding. In this VCAT proceeding, they opposed Dr Fidge's application.
6. The Joined Parties made 23 allegations against Dr Fidge, a subset of the allegations that were before the Panel. With respect to Allegations 1 to 22, Dr Fidge admitted the alleged conduct and denied he had breached the Code. He disputed the validity of Allegation 23 as it was a 'roll-up' of many of the other 22 allegations.
7. As is appropriate in these types of proceedings, VCAT had agreed that the Panel take a neutral role and be excused from appearing at the hearing.
8. Dr Fidge said he made his application because:
   • (a) He believes he exercised his democratic rights of free speech and did not breach the Code;
   • (b) He intends to run for election to Council in the 2016 Victoria wide council elections; and
   • (c) The Panel findings may be relevant to his registration as a medical practitioner.
9. After hearing evidence in submissions, I reserved my decision allowing supplementary written submissions from the parties.

Relevant legislation - Local Government Act & VCAT Act

1. In 2008, the Victorian Parliament amended the Act to specify standards of conduct for elected councillors and to provide for processes to support and reinforce good conduct by them.
2. It introduced Councillor Conduct Panels and gave VCAT new powers in relation to councillor conduct.
3. Division 1A of the Act deals with councillor conduct. It relevantly says:

It is a primary principle of Councillor conduct that, in performing the role of a Councillor, a Councillor must -

(a) act with integrity; and

(b) impartially exercise his or her responsibilities in the interests of the local community; and

(c) not improperly seek to confer an advantage or disadvantage on any person.

In addition to acting in accordance with the primary principle of Councillor conduct specified in section 76B, in performing the role of a Councillor, a Councillor must -

(a) avoid conflicts between his or her public duties as a Councillor and his or her personal interests and obligations;

(b) act honestly and avoid statements (whether oral or in writing) or actions that will or are likely to mislead or deceive a person;

(c) treat all persons with respect and have due regard to the opinions, beliefs, rights and responsibilities of other Councillors, Council staff and other persons;

(d) exercise reasonable care and diligence and submit himself or herself to the lawful scrutiny that is appropriate to his or her office;

(e) endeavour to ensure that public resources are used prudently and solely in the public interest;

(f) act lawfully and in accordance with the trust placed in him or her as an elected representative; and

(g) support and promote these principles by leadership and example and act in a way that secures and preserves public confidence in the office of Councillor.

(1) A Council must develop and approve a Councillor Code of Conduct for the Council within 12 months after [From 19 November 2008].

(2) A Council must review the Councillor Code of Conduct within the period of 12 months after a general election.

(3) A Councillor Code of Conduct -

• (a) must include the Councillor conduct principles;
• (b) may set out processes for the purpose of resolving an internal dispute between Councillors;

(d) must include provisions in respect of any matter prescribed for the purpose of this section;

(e) may include any other matters relating to the conduct of Councillors which the Council considers appropriate.

(5) A Councillor Code of Conduct must not be inconsistent with any Act or regulation.

(5A) A Councillor Code of Conduct is inoperative to the extent that it is inconsistent with any Act or regulation.

(6) A copy of the current Councillor Code of Conduct must be -

(b) available for inspection by the public at the Council office and any district offices.

(7) [From 19 November 2008] a Councillor Code of Conduct is taken to include the Councillor conduct principles.

1. Section 81B of the Act allows a council or individual councillors to make an application/s for a Councillor Conduct Panel to be convened which has the power to make a finding of misconduct against a Councillor (of the same council) or to authorise a referral to VCAT on a serious misconduct issue.
2. Sections 81C to 81I, govern a Panel's procedures, including the holding of a hearing.

81J Determinations by a Councillor Conduct Panel

(1) After a Councillor Conduct Panel has conducted a hearing, the Panel may -

(a) make a finding of misconduct against a Councillor; or

(b) authorise an applicant to make an application to VCAT if the Panel considers that there are reasonable grounds on which VCAT may make a finding of serious misconduct against a Councillor; or

(c) whether or not a finding of misconduct against a Councillor has been made, make a finding that remedial action is required; or

(d) in addition to any findings made under paragraphs (a) to (c), direct that the Council amend its Councillor Code of Conduct in a particular way or to address a particular issue; or

(2) If a Councillor Conduct Panel makes a finding of misconduct against a Councillor, the Panel may -

(b) direct that Councillor to make an apology in a form or manner determined by the Panel; or

(c) direct that Councillor to take leave of absence for a period specified by the Panel not exceeding 2 months, commencing on a date specified by the Panel.

(3) If a Councillor Conduct Panel makes a finding that remedial action is required under subsection (1)(c), the Panel may -

(a) direct the Councillor who is the subject of the application to attend mediation; or

(b) direct the Councillor who is the subject of the application to attend training; or

(c) direct the Councillor who is the subject of the application to attend counselling.

(4) For the purposes of subsection (3), a Councillor Conduct Panel may set reasonable conditions in respect of how or when remedial action is to be undertaken.

(5) Any necessary expenses incurred by Councillors in attending mediation, training or counselling must be paid by the Council.

(6) If a Councillor Conduct Panel directs the Council to amend its Councillor Code of Conduct, the Council must comply with that direction within 3 months of the direction being made.

(7) This section does not apply to a Councillor Conduct Panel formed for the purposes of hearing a referral from VCAT under section 81L.

1. Section 81Q confers jurisdiction on VCAT to review Panel decisions under s81J.
2. Once an application is made, under s51 and s51A of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act), VCAT stands in the shoes of the Panel which made the original decision. VCAT has all of the Panel's functions and powers. In summary, VCAT may affirm the decision, vary the decision, make another decision in substitution, remit a matter to the Panel for it to reconsider subject to directions or invite the Panel to reconsider its decision.
3. VCAT may consider evidence put to it at a hearing. This may include evidence not put to the Panel, including evidence about events up to the end of the VCAT hearing.
4. VCAT is obliged to reach what it considers the correct and preferable decision.

1. These reasons:
   • (a) Summarise the 'general evidence' of each of the witnesses in the order they gave evidence;
     1. Ms Parisotto, former councillor and Mayor at the times relevant to the allegations;
     2. Mr Joyce, former councillor and former Mayor; and
     3. Dr Fidge.
   • (b) Insert into Ms Parisotto's evidence, summary references to the chronology of Dr Fidge's conduct which gave rise to the allegations before VCAT. This is to provide a sense of the relevant sequence of events;
   • (c) List each of the 23 allegations and summarise evidence relevant to the allegation. The alleged conduct is not in dispute. What was in dispute was whether the conduct breached the Code. These reasons do not record which of the Joined Parties made each allegation.
   • (d) Discuss how the Code is to be interpreted;
   • (e) Record decisions about each allegation; and
   • (f) Briefly discuss the next step in this proceeding.

1. In 2000, Ms Parisotto was first elected to Council. Until September 2012, she discharged her duties as a councillor while being employed. From October 2012 to 24 September 2013 when Council was dismissed, she held the position of Mayor. She resigned her employment to do so.
2. Ms Parisotto spoke of party politics playing no role in the Council. Decisions were discussed and made based on councillors' personal views and opinions.
3. Council meetings were conducted in public, unless there was need to close a meeting to discuss a particular issue, such as personnel matters.
4. Council meeting minutes were kept and were available for public inspection. If a division was called requesting councillors to show the way they had voted, the votes for and against were recorded. Any councillor could call for a division.
5. The councillors' role was to decide strategic matters. The council staff's role focused on operational matters.
6. Before the Council's dismissal, the CEO had held the position for about five years.
7. The CEO's contract was subject to an annual review. The councillors would meet and discuss the overall performance. Any issues would be raised. A consultant would meet with the councillors and take them through a review process. The CEO would present what had been achieved in the last year. Councillors would decide whether to continue the CEO's contract.
8. No performance review of the CEO took place from late October, when the new council was sworn in, until it was dismissed on 24 September 2013. On a number of occasions, Dr Fidge asked for the review to take place. It was not the time to do it.
9. Apart from the performance review process, a councillor could write to the Mayor if he or she had a serious concern about the CEO's performance. The issue would be tabled for confidential discussion at a briefing session.
10. A councillor could raise a notice of motion to discipline or dismiss the CEO. However, it would not formally constitute a notice until it was presented to the CEO before a briefing session and whether or not it was appropriate or vexatious was discussed.
11. The CEO[2] employed directors who with the CEO formed the corporate management team. Directors headed particular areas such as infrastructure, community services, and economic development and sustainability.
12. Councillors and the CEO and Council staff occupied the same building. Councillors could meet with the CEO and rarely had reason to meet with staff.
13. An effective working relationship between councillors on one hand and the council staff was vital. The councillors as decision-makers needed to have that strong working relationship with staff as they rely on their expertise.
14. I now turn to Ms Parisotto's evidence about relevant events.
15. [Concerning Dr Fidge's conduct:
    • (a) On 31 October and 1 November 2012, Dr Fidge published on Facebook negative comments about the CEO and council staff - Allegations 1 and 2;
    • (b) On 14 December, he published on his private Facebook page saying Council not providing him letterhead was dysfunctional - Allegation 3.]
16. Councillor Parisotto recalled on 15 December 2012, Dr Fidge complained under the Act about the CEO's conduct relating to the provision of letterhead. The complaint was investigated by an organisation called Work Logic whose investigation was monitored by a probity auditor appointed under the Act.
17. [Concerning Dr Fidge's conduct:
    • (a) On 20 December, Dr Fidge was quoted on the letterhead issue in the Border Mail - Allegation 4;
    • (b) On 4 January 2012, Dr Fidge emailed councillors about letterhead including criticism of the CEO and speaking of "toxic councillors" - Allegation 5;
    • (c) On 9 January 2013, a Yarrawonga Chronicle[3] published a letter by Dr Fidge related to letterhead. It was critical of the Mayor of Moira Council - Allegation 6;
    • (d) On 23 January, the Wangaratta Chronicle quoted Dr Fidge criticising the CEO and staff for inaction concerning addressing the proximity of the Everton Cenotaph to the Great Alpine Highway - Allegation 7;
    • (e) On 24 January the Border Mail quoted Dr Fidge saying he would be happy to receive the CEO's resignation - Allegation 8; and
    • (f) On the same day, Dr Fidge emailed the CEO, copied to councillors, complaining of inaction about a PA system and projector in the council chamber - Allegation 9.]
18. Councillor Parisotto recalled, in response to Dr Fidge's statements about not being provided with Council letterhead, Council sought and received legal advice from Maddocks Lawyers dated 4 February 2013[4], which was provided to all councillors. It in part dealt with the public statements Dr Fidge had made to that stage. The advice included opinion that the Code applied to the new Council, Dr Fidge had breached the Code and Council was at some risk concerning its obligation to the CEO and other employees under the Occupational Health and Safety Act 2004 (OHS Act).[5]
19. [Concerning Dr Fidge's conduct:
    • (a) On 5 February 2013, Dr Fidge published a webpost criticising the CEO's action about the Everton Cenotaph - Allegation 10;
    • (b) On 13 February, the Wangaratta Chronicle quoted Dr Fidge concerning the release of a letter to him saying it eroded his confidence in the CEO and the management team - Allegation 11; and
    • (c) About 15 February Dr Fidge refused to attend an initial meeting with a mediator - Allegation 22.]
20. About 18 February 2013, Ms Parisotto received a memorandum from the CEO of that date, regarding Dr Fidge's public statements about the CEO and the staff.[6] All councillors received a copy.
21. While Ms Parisotto did not give evidence about the content of the memorandum, it concerned Dr Fidge's Facebook comments, a Border Mail article concerning the letterhead, a Wangaratta Chronicle article concerning the Cenotaph and another Border Mail article, reporting Dr Fidge calling on the CEO to resign unless he was prepared to work with the councillors.
22. The CEO described the allegations as hurtful, embarrassing and damaging to his reputation. In his view, if Dr Fidge had concerns about his performance, he should raise them in the appropriate forum, not in public. This would give Dr Fidge the opportunity to have his say, the CEO to respond and councillors to decide the issue. He sought a ruling from Ms Parisotto that any performance issue should be dealt with that way. He foreshadowed if hostility toward him did not abate, he had the capacity to take formal action under his contract of employment and under the OHS Act, relating to Council failing in its duty to provide him with a safe workplace.
23. Ms Parisotto was very disturbed at the implications for Council.

1. [Concerning Dr Fidge's conduct:
   • (a) On 21 February 2013, the Border Mail quoted Dr Fidge hoping the CEO would resign - Allegation 12;
   • (b) On 22 February, the Wangaratta Chronicle quoted Dr Fidge concerning meeting procedure "We can't have a CEO acting unlawfully" - Allegation 13;
   • (c) On 23 February, Dr Fidge emailed the CEO suggesting he resign - Allegation 14;
   • (d) On 1 March, the Wangaratta Chronicle quoted Dr Fidge concerning the upcoming special council meeting on 7 March, very critical of council process and of the Council. He would not attend - Allegation 15;
   • (e) The same day he emailed journalists criticising (at least the CEO) in rude terms - Allegation 16; and
   • (f) On 5 March, the Wangaratta Chronicle again quoted Dr Fidge about the upcoming 7 March special meeting. He would attend. He said he was being bullied and would welcome the CEO's resignation - Allegation 17.]
2. On 7 March 2013, a Council special meeting discussed a second Maddocks legal advice. It passed the following motion, moved by Mr O'Brien and seconded by Dr Fidge.[7]

Although the Council of the Rural City of Wangaratta supports transparency and accountability in decision making, free speech and the use of appropriate, robust processes to debate policy, pursue political objectives and resolve differences, it does not and will not condone personal and public criticisms of Councillors or staff. Any Councillors who engage in such conduct will be doing so without the sanction and authority of the Council.

1. After Council had passed the 7 March 2013 motion, Dr Fidge made further negative public statements about council staff.
2. [Concerning Dr Fidge's conduct:
   • (a) On 14 March 2013, ABC Radio broadcast Dr Fidge's critical comments about the CEO and Management Team - Allegation 21;
   • (b) On 15 March, the Wangaratta Chronicle quoted Dr Fidge criticising the Management Team over the proposed expense of addressing the Everton Cenotaph issue - Allegation 18; and
   • (c) On 22 March, Dr Fidge issued a press release criticising the CEO and councillors and calling for an investigation - Allegation 19.]
3. About 28 March, Ms Parisotto received a memorandum from the CEO of that date.[8] All councillors received a copy.
4. In large part it concerned Dr Fidge's actions at a Council meeting on 19 February 2013, Dr Fidge proposing a committee to review the CEO's performance (the motion lapsed for want of a seconder), criticism of the CEO's decision to appoint a consultant which reached the press, Dr Fidge's comments on ABC radio on 4 March 2013, and his press release dated 22 March 2013.[9] The CEO discussed issues relating to a proposed meeting between him and councillors and said he considered Council to be in serious breach of his contract of employment in not providing a safe workplace.
5. Council sought and received further legal advice from Maddocks Lawyers dated 9 April 2013[10] which was provided to all councillors. While Ms Parisotto did not give evidence on its contents, it concerned strategies available to Council with respect to its obligations to the CEO under the OHS Act. It noted the Panel process had commenced.
6. About 22 April 2013, Ms Parisotto received an e-mail from the Management Team, copied to the CEO which all councillors received, concerning the impact on employment by Dr Fidge's conduct.[11] The team gave notice that if steps were not taken to address the issue before 3 May 2013, they would seriously consider their contracts of employment.
7. Ms Parisotto was at her wit's end. She asked the Municipal Association of Victoria for help. While the Association tried to assist by meeting with those involved to find a solution, the outcome was a complete breakdown between the Council and council staff. Not long after, the council management team, "went out on sick leave".
8. About 5 May 2013, Council received a memorandum from the CEO attaching an investigation report from The ZALT Group and legal advice from HR Legal.[12] The CEO commissioned these documents due to staff complaints about their treatment. Due to the confidential nature of part of the documents and fear those parts would be released into the public arena, councillors were provided with edited versions and given the opportunity to read the complete reports but not to take complete copies.
9. I note, the legal advice said there was strong evidence concerning Dr Fidge's towards the CEO and one member of the management team and Council may potentially be prosecuted under the OHS Act for failing to provide a safe workplace and face other potential legal risks. The advice made recommendations to eliminate the risk.
10. About 9 May 2013, the CEO sent a memorandum of that date to all Council staff. He described procedures to limit the contact between Dr Fidge and staff, saying they arose from an investigation report and legal advice.[13]
11. Ms Parisotto described the CEO during these times becoming unsettled and withdrawn; he was not coping with a health condition. The Management Team became quite withdrawn and very apprehensive about making comment or providing advice. Staff morale was very low and angry. The relationship between the councillors and the staff was very strained because the directors refused to come to Council meetings. Council was only receiving basic information; not enough to fulfil its duties.
12. In early May, the CEO and the Management Team all went on sick leave citing stress. Before going on leave, the CEO put acting directors in place. They started in May. Council regained some momentum.
13. [Concerning Dr Fidge's conduct, on 9 May 2013, ABC radio broadcast Dr Fidge saying the Management Team should be ashamed of themselves for going on sick leave. In his view, that was industrial action. - Allegation 20.]

1. In 1997, Mr Joyce was first elected to Council. He served six years and retired. In 2005, he was elected again and served three years, serving as Mayor for two years. While he was Mayor, he chaired Regional Cities Victoria. In October 2012, he was elected and served until September 2013, when Council was dismissed.
2. Mr Joyce said the 2012 election campaign was different from past campaigns. Dr Fidge's election campaign included personal criticism of him, the CEO and Council staff.
3. In Mr Joyce's experience, party politics played no role in the Council's decision making.
4. Concerning the differing roles of councillors compared to staff, the CEO and staff maintained the organisational structure and managed day to day operations while councillors made decisions only when sitting as a council at a properly constituted authorised meeting.
5. A good relationship between the two is paramount. Councils rely on staff expertise to make good decisions.
6. If staff become reluctant to provide frank forthright advice, Council may be hampered in delivering for its community.
7. Mr Joyce said following Dr Fidge's publications and statements, the CEO appeared to be under extreme stress and became very reserved in his contact with councillors, as did the management team. Staff morale was low. This manifested in Council business papers getting smaller and smaller, Council receiving less advice and a low level of senior staff participation in Council meetings. While Council passed what was before it, Mr Joyce believed its output should have been far greater.

1. On 27 October 2012, Dr Fidge was elected to Council. He described his campaign as aimed at action and change in Council including lower rates, trimming of dangerous trees on roadsides, tree planting and conservation of heritage, reduced consultant costs, transparent decision making, budget control, improved waste management and recycling and listening to locals and implementing the will of taxpayers.
2. A leaflet attached to his witness statement said:

Wangaratta Council has lost sight of its function and expenditure. The current Council has paralysed investment and development in Wangaratta, and the region is not developing as well as it should in terms of industry and employment, especially given its central location in north-eastern Victoria. Poor Council decisions are costing Wangaratta ratepayers a lot of money that could be easily saved.

1. On 27 October 2012, Council elections were held. They failed to return five of the seven serving councillors. Ms McInerney, and Ms Parisotto (both Joined Parties to this proceeding) were returned from the previous Council. Mr Joyce was elected for his third non-consecutive term.
2. Dr Fidge said on 30 October 2012, a Council employee telephoned him and said two senior Council managers had been directed by the CEO to find grounds to overturn his election to Council. He was told they were searching for information damaging to him.
3. Dr Fidge said while the Act required that each new Council agree on a new Code after an election, Mr Joyce in effect prevented the formulation of a new Code until March 2013, when the Minister for Local Government directed the Council to develop a new Code.
4. Therefore, Dr Fidge was subject to a Code of Conduct he never agreed to and was never able to review or debate. He formed the view his oath of office as a councillor over-rode the Code which contained many elements that were overly restrictive and/or incompatible with the exercise of his duties as a councillor, was unclear and in part ambiguous to the point of not being able to be applied. He also believed that the Code went beyond the steps reasonably necessary and proportionate to achieve the Act's aims.
5. While he appreciated that the legislative aim behind the Code was to increase the level of discourse by councillors and to improve councillor behaviour, in his view strict adherence to it would have left him unable to pursue legitimate concerns in the public interest.
6. After he was elected, Dr Fidge found previous councillors and senior Council officers responded with hostility to any initiative or questions by councillors. He believed Council officers had historically adopted this stance, with the CEO refusing to provide appropriate information to councillors.
7. Mr Joyce, when the former Mayor, interpreted the Code such that councillors could not voice their opinion outside the Council chamber. It appeared the Joined Parties believed Council could lawfully prevent councillors from communicating about government and political matters outside the Council chamber, and often within the chamber during debate.
8. Dr Fidge said he went to considerable lengths to educate his councillor colleagues that the Code could not at law override the implied freedom of political communication afforded by the Commonwealth Constitution.
9. Dr Fidge said he was "strongly castigated" at the beginning of every meeting by the Joined Parties, to the point where he considered resigning.
10. Although they were elected with no party affiliations, Dr Fidge formed the view Joyce, McInerney and Atkins were a 'block' and enjoyed the support of senior Council officers. They had a "special status" with the CEO especially and on occasion effectively overturned Council decisions by themselves.
11. For example, after Council had resolved to take urgent action to protect the Everton Cenotaph, Mr Atkins asked the CEO to not take any action and to return to the residents of Everton and survey them about how they wished to proceed. To Dr Fidge's surprise, the CEO accepted what Dr Fidge said was improper direction from Mr Atkins. Council's resolution was not implemented.
12. Dr Fidge said until after Council's dismissal, he was not aware Joyce, Mclnerney and Atkins had, with the assistance of senior Council officers, written directly to the Minister for Local Government on numerous occasions complaining about him and asking for his suspension.
13. Dr Fidge believed those complaints formed the basis for the dismissal of the Council and the Minister for Local Government never gave him a chance to address their contents. He believed the complaints were politically motivated and the Joined Parties' objective was to harass him into resigning.
14. In Dr Fidge's view, the applications to the Panel were politically motivated, petty, nonsensical or motivated by an improper purpose. In his view, the sheer number suggested a campaign by the Joined Parties to undermine his role as a councillor and harass him into resigning rather than seeking to genuinely resolve the issues.

1. The councillors concerned did not seek to raise the allegations with him directly, or with the Mayor, before seeking a Panel be convened, even though they were aware of the requirements of the Code's Dispute Resolution Procedure to raise these issues with the Mayor for her to deal with in her role as governance advisor.
2. Concerning legal advice received during the relevant time, Dr Fidge accepted the 7 March 2013 Maddocks advice was that there was a basis for concluding his conduct amounted to bullying and harassment in breach of OHS law, he had contravened the Code of Conduct and his criticisms of the CEO were inappropriate. [14]
3. Dr Fidge obtained legal advice from Russell Kennedy Lawyers. While he regarded it as preliminary, it did not advise he should disregard the Maddocks advice. Rather it proposed a strategy whereby he would indicate he was willing to be more co-operative.[15] Consistent with that advice, Dr Fidge seconded the 7 March 2013 Council Motion quoted above.
4. In an article in the Border Mail on 8 March titled "Enough with the trash talking" Dr Fidge was quoted:

Cr Fidge said last night he supported the decisions reached at the meeting. "I will be careful what I say to the media and how I say it."

1. I return to Dr Fidge's evidence concerning each allegation below. It is convenient to now briefly refer to avenues of complaint open to councillors.

1. A councillor who wishes to raise issues of council or councillor conduct is able to ventilate them under Victorian Law.
2. The Local Government Act 1989 enables applications to Councillor Conduct Panels, referrals to VCAT, referrals to inspectors of municipal administration and probity audits concerning the conduct of council CEOs. It is not necessary here to detail pre-requisites of each of those mechanisms coming into play.
3. The Ombudsman Act 1973 says persons may make a complaint to the Ombudsman about administrative action taken by or in an authority. While "authority" does not include a councillor of a Council, it does include a Council and Council staff. (ss14 and 3)
4. The Independent Broad-Based Anticorruption Commission Act 2011 enables a person to make a complaint to IBAC about conduct the person believes may be corrupt conduct. The term "corrupt conduct" includes conduct within councils. (ss51 and 4)
5. Concerning IBAC, apart from comments about low-level corruption during the election campaign, Dr Fidge did not allege nor complain of corruption at Council.

1. I now turn to the allegations. They are a subset of the allegations that were before the Panel, apart from Allegation 23, which was described by the Joined Parties as a 'roll-up' of various of the other allegations.

1. The allegation was Dr Fidge breached clauses 1, 2, 2.2(c), 2.2(g), 3.1, 3.1.3, 3.1.5, 3.2.3, 8.1 and 8.3 of the Code, because on 31 October 2012, he posted material on his public Facebook page with the following remarks:

We have had a couple of meetings with Wangaratta Council Management Team, and they have been quite strained.

One of the recurring complaints from residents was the poor treatment they receive from council officers and my own observations at council meetings confirmed the contempt with which residents are treated by senior council officers and the previous council. It was always made abundantly clear to me while I was campaigning that residents wanted the previous council, and senior council staff, gone.

Hence the almost clean sweep at the election. I polled particularly highly, receiving the second-highest number of first preferences and was the third candidate elected. This is a tremendous result for a novice candidate, and I made it quite clear what my policies were.

When asked this week, Council managers said they were "shocked" at the outcome of the election demonstrating how badly out of touch with the community the CEO and senior council managers are. They honestly think they are doing a great job and the community likes them when in fact they are performing poorly and treating residents like dirt, or worse.

But there may be [a] way back for the CEO and his officers to their previous sycophantic relationship with Wangaratta Council ... my sources in council tell me council officers are desperately digging dirt up on myself in an effort to have me disqualified ... They shouldn't be successful unless they start inventing stories. As a doctor and pharmacist and former army officer, I am used to my conduct being continuously scrutinised by many different bodies ...

It is disgraceful that Wangaratta council officers remain so strongly opposed to the community and are devoting council time and resources to try to overturn my election. If they do not feel they can work for residents under the direction of the new council, they should resign, not try and alter the results of a very clear election.

Wangaratta council officers need to accept the results of the election, or resign. Many of them are so badly out of touch with the community I would prefer they resigned.[16]

1. Concerning Dr Fidge's posts on his Facebook page, Ms Parisotto met with the CEO, who was very angry about the publication. He was concerned about the impact on staff, who he said felt very uneasy and concerned about job security. She, Dr Fidge and the CEO met. Dr Fidge agreed to remove the posts.

1. Dr Fidge made the post on his public Facebook page the day after he was sworn in as a councillor. By then he had experienced about a couple of months of interaction with council staff. The Management Team made him feel unwelcome. His reaction was to advise the community of the situation; consistent with his election campaign.[17]
2. He accepted his conduct risked Council staff becoming fearful that any time he disapproved of their conduct, he would publish to the world at large. However, in his view, the Management Team had a history of causing councillors to resign. He was not going to be stood over nor be gagged. Dr Fidge denied making the post intending to induce the CEO to resign.
3. He said while the Facebook posts were public, constituents would have to search to find them. Council staff may not have been aware of them.
4. When the Mayor asked that he removed the posts, Dr Fidge did so. He described this as an excellent example of the Council process working as it should; an issue was raised directly with him and addressed.
5. Turning to the Code, Dr Fidge would have only received a copy of the Code of Conduct (the Code) on or about the day he posted on Facebook.
6. Dr Fidge noted the overarching obligation imposed by s 63 of the Act, which requires councillors to swear an oath to act "in the best interests of the people of the municipal district of Wangaratta". He believed this overrode the Code's provisions which conflicted with the Oath.

1. The allegation was Dr Fidge breached clauses 1, 2, 2.2(c), 2.2(g), 3.1, 3.1.3, 3.1.5, 3.2.3, 8.1 and 8.3 of the Code because on 1 November 2012 he posted material on his public Facebook page:

There was an election. That's how things work in Australia. If you don't like it, go live somewhere else.

This council, including myself, are here until 2016. ... is not coming back to save you.

If you don't like the result, resign and stand for Council yourself in 2016.

I will not allow myself or any other Councillor to be undermined by Council staff, senior or not.

1. Dr Fidge repeated his response to Allegation 1.

1. The allegation was Dr Fidge breached clauses 1, 2, 2.2(c), 2.2(g), 3.1, 3.1.3, 3.1.5, 3.2.3, 8.1, 8.3 of the Code, because on 14 December 2012, he posted material on his Facebook page:

OMG! I asked for some council letterhead now I am a councillor, and the CEO won't give me any! How dysfunctional is that!

1. Dr Fidge said this post was on his personal Facebook page, intended for family and friends. He was angry it was included in this proceeding.
2. It was commentary on the refusal to provide letterhead rather than a statement at large that Council was dysfunctional. There was no public denigration of the CEO, nor personal acrimony and insult.
3. Nor was there any failure to work constructively. Dr Fidge made the request directly of the CEO, and that request was denied. He disagreed with the CEO's position in light of the provisions of the Code and other Council policies on the issue.

Allegation 4 - comments to the Border Mail newspaper

1. The allegation was Dr Fidge breached clauses 1, 2, 2.2(c), 2.2(g), 3.1, 3.1.3, 3.1.5, 3.2.3, 8.1 and 8.3, because he made comments to the Border Mail newspaper, which it published on 20 December 2012:

"About a week ago, I was carpeted by the Mayor for submitting notices of motion on my own letterhead, " Dr Fidge said.

He asked for rural city of Wangaratta letterhead and didn't hear anything.

Dr Fidge said Cr Parisotto had asked for a template to be provided to him, but it was a PDF file and could not be edited or used.

Another request in writing was made and ignored before Dr Fidge approached executive assistant seeking a letterhead.

His request was rejected and Dr Fidge was told [the CEO] had not decided whether councillors should have access to it.

He described the situation as being, "highly unprofessional, inappropriate, rude and a farce."

So I guess my notices of motion will continue to be submitted on my own letterhead." He said.

Cr Parisotto said no councils in Victoria allowed councillors to use official letterhead and it was the first time any Wangaratta Councillor had asked to use one.

She said the council letterhead was used for official documents such as contractual agreements. She said councillors could request personalised letterheads.

She said Dr Fidge was entitled to his opinion and any councillor had a right to make a complaint.

She could not comment further on Dr Fidge's complaint but said the council was efficient.

"We're here to work with council and council officers and we have many projects before us and we're very keen to achieve these projects and outcomes for our community", she said.

The use of council letterhead comes under its code of conduct. This code of conduct is reviewed every time a new council comes in and Cr Parisotto said this would be done early in the New Year.

1. Councillor Parisotto was contracted by a journalist for comment as Mayor before the Border Mail published the article. She was not then aware Dr Fidge had made a complaint against the CEO under the Act. He later wrote to her and also advised the councillors of the complaint. This was the complaint Work Logic investigated.

1. On about 5 December 2012, Dr Fidge asked the CEO to provide letterhead so he could submit Notices of Motion to Council and write to constituents.
2. Clause 7 of the Code provided for councillors to access stationary, photocopying and postage or distribution of correspondence relating to Council business.
3. The Mayor had reprimanded him, in front of the CEO, for submitting Notices of Motion on his own letterhead and requested he submit them on Council letterhead.
4. The CEO did not provide the letterhead. In Dr Fidge's view, this prevented him from submitting notices of motion as he could not personally attend Council in order to sign them once Council staff prepared them, given his medical practice. Dr Fidge said the CEO refused to communicate with him on the issue.
5. Ultimately, Dr Fidge prepared his own letterhead.
6. On the issue of writing to constituents, Dr Fidge was aware councillors in Victoria could use personalised Council letterhead with the Council logo. He had seen a letter of that nature from a councillor in another council.
7. Dr Fidge raised a complaint in respect of the CEO's failure to provide him with letterhead, and requested a probity auditor be appointed to consider his complaint.
8. Dr Fidge spoke with the journalist, which led to the publication after he had made a complaint under the Act about the CEO. He disagreed he was trying to publicise that complaint, to place pressure on the CEO to agree to his request. He was reporting to his constituents.
9. Dr Fidge disagreed that by publicising his complaint before the CEO had the opportunity to respond to the formal complaint, he showed no respect for the complaint process. In his mind, the two were not related. The article addressed the issue of why councillors were having trouble submitting notices of motion. He saw his words as mild and moderate reporting.

1. The allegation is Dr Fidge breached clauses 1, 2, 2.2(c), 3.1, 3.1 .2 and 3.1.3 because on 4 January 2012, he sent an email to the councillors about the provision of letterhead to Banyule Council councillors. The email said:

This policy demonstrated how Banyule Council has formulated a specific policy for resources. I think we should do the same.

I refer you to section 7.11 which clearly states that six boxes of individual letterhead paper are supplied to every councillor.

The obstructive actions by the CEO and some Councillors in this matter are causing unnecessary expense and wasting time.

I will be calling for the resignation of the CEO and those Councillors to continue to obstruct Council. Everyone knows that I am correct, and that Councillors should be writing letters on letterhead, individualised or not. I will not accept further obstruction by toxic Councillors who seek to portray the Rural City of Wangaratta Council as a mob of hill-billies run by half-wits who can't be bothered to write a letter to their constituents and seek to stop me from doing so. That may have been how Council was run in the past, but it is not going to be like that in the future.

1. In 13 years on Council, Councillor Parisotto had never heard a councillor call another councillor toxic. She found it very disturbing. She said other councillors were very angry and upset.

1. Dr Fidge disagreed he used the term "toxic councillors" as gratuitous personal insult. He was protesting about the way some councillors and the council were being treated and what were, in his view, dishonest statements during meetings to the effect that councils in Victoria are not provided with letterhead. In his view, this refusal to provide letterhead made the Council looked like country hicks.[18]
2. His comments responded to Mr Joyce's comments to Council that official council letterhead was not used by any council in Australia. Dr Fidge told Council this was untrue, and provided copies of other Councils' policies to the Council in this email.
3. Dr Fidge was frustrated at the CEO preventing him from carrying out his responsibilities as a councillor and at Council being wrongly advised.

Allegation 6 - Letter to the Editor published in the Yarrawonga Chronicle

1. The allegation was Dr Fidge breached clauses 2.2(c) and 3.1.1 of the Code because on 9 January 2013 his letter was published in the Yarrawonga Chronicle.
2. Dr Fidge said in part:

In my opinion the Moira Shire Council does not have the power to obstruct councillors from identifying themselves as councillors when writing on council business and to do so is illegal and obstructive under section 30 of the Local Government Act 1989. ...

And clearly your [Moira Council's] CEO needs a kick in the pants for his or her unprofessional conduct, too, for failing to explain to Council it is beyond the power of any Council to have such a policy.

1. Councillor Parisotto had never seen a councillor rebuke an officer of another council in a letter to the editor. She contacted Moira Shire's Mayor and apologised.

1. Dr Fidge researched Council policy to compare other Councils to Wangaratta Council. He learnt Moira Council did not allow councillors to identify themselves as councillors when they wrote to constituents.
2. He described the thrust of his letter to be that Council staff do not have the power to do this and the Moira CEO's conduct was reprehensible.[19]
3. Dr Fidge agreed he had no knowledge of Moira Council's affairs, did not know the people involved and did not understand how the policy came to be.
4. Dr Fidge was championing the cause of the provision of letterhead to councillors in order to promote the proper exercise of councillors' functions and duties. In his view, his colloquial language in his letter was appropriate for a country town newspaper.
5. Dr Fidge denied his letter damaged the Council in any way; it promoted representative government.

Allegation 7 - Comments in Wangaratta Chronicle

1. The allegation is Dr Fidge breached clauses 1, 2, 2.2(c), 2.2(g), 3.1, 3.1.5, 3.2.3, 8.1 and 8.3 of the Code because he made the following comments, which on 23 January 2013 were published in the Wangaratta Chronicle:

A lack of physical progress in protecting the Everton cenotaph has left Councillor Julian Fidge frustrated.

Rural city of Wangaratta councillors voted to protect the cenotaph, which sits less than a metre from the great Alpine Road is a matter of urgency last November.

Council has began assessing its options for protecting the cenotaph but Cr Fidge said not enough had been done. ...

[The article describes a response from a council officer about the process underway]

Cr Fidge said he would have expected to see some interim protection erected.

"I would have expected half a dozen star pickets in some high visibility fencing to be placed around the cenotaph by the end of that week in November", he said.

"Not only has nothing been done, nothing has been said for three months. We have had no explanation from the CEO or council staff of why they have allowed the cenotaph to remain [at] risk and at risk from passing traffic.

"I believe the lack of action or explanation from the CEO and council staff is a sterling example of their unwillingness to work with the new council and their contempt for residents."

"If council staff cannot accept a war memorial is important to the community, deserves preservation and take reasonable steps to protect it after being specifically directed to take such action by council, we need to find a new CEO who will obey the law and respect residents and council."

1. The CEO had told Ms Parisotto he was concerned at the comments that the process had been stalled. The project was not funded, needed to be costed and VicRoads needed to be engaged before a report could be provided to Council about progressing the issue.

1. The Everton Township requested the Council to protect the Cenotaph.
2. Dr Fidge amended a notice of motion on the topic to include an additional motion that Council do something to urgently protect the Cenotaph from passing traffic, given the Cenotaph's proximity to the road.
3. The amendment was carried, and so the CEO was obliged to carry out Council's resolution without undue delay and to provide timely advice to Council. This did not happen. The CEO and other councillors appeared angered by Dr Fidge's amendment.
4. At one point, Dr Fidge contacted VicRoads directly, about placing guide posts at a much lower cost. He said VicRoads indicated that would be acceptable.
5. In his view, the CEO's refusal to carry out Council's resolution meant the Everton Cenotaph remained a risk to passing traffic and at risk itself. There was not even a warning sign indicating how close the stone structure was located to the road.
6. Dr Fidge disagreed that his comments showed a lack of respect and courtesy to the CEO and his position. His duty was to communicate to the citizens of Everton that Council had acted but Council staff were obstructing.[20]

Allegation 8 - Comments in the Border Mail newspaper

1. The allegation is Dr Fidge breached clauses 1, 2, 2.2(c), 2.2(g), 3.1, 3.1.5, 3.2.3, 8.1 and 8.3 of the Code because on 24 January 2014, he made the comments which led to the Border Mail publishing:

Cr Fidge succeeded with a notice of motion on Tuesday night to strip the power of the council executive led by [the CEO] to appoint consultants for the next 12 months.

The councillor, who has already accused [the CEO] of trying to gag councillors, said his notice of motion is designed to save on the $1.2 million spent on consultants last year.

But in another swipe, Cr Fidge said yesterday unless [the CEO] was prepared to work with the other new council is he should quit.

"I am very dissatisfied with the CEO's attitude and behaviour toward the new council." Cr Fidge said.

"I value his corporate knowledge and hoped he would work with us, but it hasn't happened. It is obvious he is not committed to the new council and he is being needlessly obstructive. As such, I would be very happy to receive his resignation."

[The article went on to discuss Cr Fidge obtaining a majority to pass the motion being "another slap in the face of the CEO". It noted the CEO had support from some Councillors.]

"Council has a duty to be frugal with ratepayers money", Cr Fidge said. ...

An investigation is already being conducted into claims Cr Fidge felt he was being inhibited by [the CEO] in carrying out his councillor roles.

1. Dr Fidge made these comments in response to questions from a Border Mail journalist about Dr Fidge's notice of notion to remove the CEO's power to appoint consultants as he saw fit. His comments arose from the following events and from his general frustration in dealing with the CEO.
2. The notice of motion was based on Dr Fidge's election platform to reduce Council expenditure on consultants.
3. The CEO was very annoyed and informed Council at a pre-meeting (on the first occasion when it was moved) that it was "illegal", "ultra vires" and "in conflict with his contract as CEO". The motion did not pass.
4. The CEO sought legal advice on the motion, at Council's cost and without authorisation to do so. The advice was the motion was legal.
5. In January 2013, Dr Fidge amended the motion reducing its trial period and exempting emergencies. The motion passed four votes to three, the three opposing votes being councillors Joyce, McInerney and Atkins.
6. As a result, Mr Joyce complained against Dr Fidge to the Minister for Local Government, the Panel and Local Government Victoria (the inspectorate) that there should be criminal and financial consequences for his "obstructing Council'.
7. The morning after the motion passed, the CEO incorrectly told council employees that Dr Fidge had said during the Council meeting they were incompetent and could not manage budgets or run expenditure. These comments were recorded in the All Staff Meeting minutes on 23 January 2013. Dr Fidge denied the comments. He said his words were, "I am dissatisfied with the inability of council staff to manage what is a large expense'
8. Dr Fidge said he genuinely valued the CEO's corporate knowledge and had wanted to develop a working relationship with him. However, the CEO did not cooperate.
9. Dr Fidge said by this stage he had sought his legal advice from Russell Kennedy Lawyers and was advised it was open to him to express disappointment with the performance of the CEO publicly.[21]
10. Dr Fidge disagreed that by publicly criticising the CEO without having sought to invoke any disciplinary process or review process in his contract of employment, his comments carried a risk of damaging a constructive working relationship between the council and the CEO. He had noticed there was often strong public criticism of CEOs, yet those people continued to carry out their duties.[22]

Allegation 9 - Email to CEO copied to all councillors

1. The allegation was Dr Fidge breached clause 8.3 of the Code because on 24 January 2013, he sent an email to the council CEO and each other councillor:

Council have directed you to provide a PA system for our chamber to be used in public meetings.

Further, the projector in the chamber has been installed under an air vent, so it shakes the projected image. Please have it moved to a more suitable site.

I would appreciate it if I did not have to chase you about matters like this.

1. On 4 December 2012 in a closed meeting, Council and the CEO agreed to install a PA system so that constituents could hear Council debate. Residents had complained debate during Council meetings was inaudible. The CEO had failed to act.
2. Dr Fidge considered his email to be entirely proper, particularly given nearly two months had elapsed without action. He did not intend to be condescending. He was saying this was a very small operational matter and not his job as an individual councillor to pursue.[23]
3. The PA system was later installed and used.

1. The allegation is Dr Fidge breached clauses 1, 2, and 8.3 because he published on two websites:

I do sincerely value [the CEO's] knowledge and experience in local government. I just wish he would start working with us, because he is making Council's job much harder than it needs to be. And I think it is becoming obvious to other members of the Council Management Team, because some recent obstructions have just melted away. Let me give you an example:

The four page report of how hard it would be to protect the Everton Cenotaph at a cost of at least $50,000 became a single paragraph report that they will pop some frangible guide posts in as soon as Vic Roads gives them permission.. .I would far prefer they just did as we asked, without all the posturing (including mine) in between direction and action.

The real losers here are the ratepayers. We have no control over staff numbers, only the budget. Despite our constant nagging about starting to save money, every week there are adverts, often multiple, for new employees. As we have no control over operations, I suspect services will be stripped in an effort to make the new Council look incompetent. A very frustrating position for Council when we would like to take a balanced approach to spending cuts.

1. Dr Fidge repeated his response to Allegation 7.
2. He denied intending to place pressure on the CEO and humiliate him in a public forum, when he had not found support on Council for a performance review of the CEO. Dr Fidge said he was communicating with his constituents.[24]

Allegation 11 - Comments in the Wangaratta Chronicle

1. The allegation is Dr Fidge breached clauses 1, 2, 2.2(c), 2.2(g), 3.1, 3.1.5, 3.2.3, 8.1 and 8.3 because he made the following comments, which on 13 February 2013 the Wangaratta Chronicle published:

Cr Fidge raised questions about why the correspondence was released. ...

"These letters came to us through councils electronic document management system", he said.

"It has further eroded my confidence in the CEO and council's management team.

It's not helpful when our personal correspondence is released to the media."

Dr Fidge said he did not receive assistance from Mrs Mirabella during the election campaign.

1. This was in the context of the Chronicle reporting the release under the Freedom of Information Act 1982 of congratulation letters to councillors by the then Ms Mirabella MP. She had included a handwritten note, "fabulous effort - now for the clean up". Two other councillors commented to the Chronicle that the release of letters from Ms Mirabella to them with similar handwritten notes did not concern them.

1. While some councillors, including Dr Fidge, were concerned about council staff and the personal mail of councillors, Ms Parisotto was not. In her view, all mail received by a councillor at Council was by nature not private. The exception would be obviously private mail sent by mistake to Council. Apart from that exception, her understanding was mail was opened, registered in the Council mail system as having been received and placed in a tray for councillors to collect.
2. In her view, it was debateable whether Ms Mirabella's letter was private correspondence. Ms Parisotto agreed it should not have been disclosed to a third party without Dr Fidge's permission. She understood why Dr Fidge and other councillors were upset.

1. Dr Fidge presumed Council staff who opened what he considered his personal mail had tipped off two councillors, who made the FOI request.
2. He considered his comments to be accurate, moderate and proper. The reality was that Dr Fidge's experience in dealing with the CEO and the Management Team had been difficult.
3. Dr Fidge agreed he publicly blamed the CEO for the release of the correspondence when he was not aware of the CEO's role, if any, in the process.
4. He had expected the CEO would communicate with the councillors about this. It was local front page news. The CEO was silent. This eroded Dr Fidge's confidence in him and the Management Team.[25]

1. The allegation is Dr Fidge breached clauses 1, 2, 2.2(c), 2.2(g), 3.1.5, 3.2.3 and 8.3 of the Code, because he made comments, which on 21 February 2013 the Border Mail published.
2. The article reported an inquiry under the Act into Council. Dr Fidge was quoted concerning his role in the events leading to the enquiry. He was quoted as hoping the enquiry would lead to a Council administrator being appointed. He was in part quoted:

"I am in the very comfortable position of not giving a shit", he said. I am just trying to do the best I can for the community here."

Cr Fidge has been highly critical of [the CEO] since being elected last October.

"I am hoping he [the CEO] has the courtesy to resign. He has worked this way in the past with other councils. But this is a new council."

1. Dr Fidge made comments in response to a journalist's questions about a special meeting the CEO called.
2. The meeting was called to vote on a car park project that was to consume 40% ($14M) of Council's budget.
3. Under s 84 of the Act, only the Mayor, three councillors acting together or Council by resolution may call a Special Meeting.
4. At the meeting, Dr Fidge challenged whether the Special Meeting was validly convened, at which point the Mayor signed a request for a Special Meeting to be called.
5. Dr Fidge considered the special meeting and the project were "rushed through".

1. The CEO had sought and obtained legal advice (after the event) on whether the meeting was validly called and then refused to produce this advice to Council. The legal advice confirmed that the CEO likely did not have power to call a Special Meeting.
2. Dr Fidge considered the CEO's actions were obstructive behaviour and an example of the CEO acting beyond his power. He disagreed he made the comments with wilful disregard for Council's potential legal exposure, having received the Maddocks advice.
3. Dr Fidge said Russell Kennedy Lawyers' advice of 7 March 2013 (the day of the special meeting) to him, "advised the Maddocks advice was plainly partisan in that it was unbalanced".[26]
4. I comment here that I take the initial advice to be more of the nature that it was reasonable for Dr Fidge to express to the meeting, his view that the Maddocks advice was plainly partisan. However, Dr Fidge's view of the advice was understandable.

Allegation 13 - Comments in the Wangaratta Chronicle

1. The allegation is Dr Fidge breached clauses 1, 2, 2.2(g), 3.1.5, 3.2.3 and 8.3 of the Code because he made comments, which on 22 February 2013 the Wangaratta Chronicle published.
2. In an article titled "Council Cracks" concerning the views of former Wangaratta councillors that given the conflict within Council, it may end up in the hands of an administrator, Dr Fidge was quoted, "I don't see this as a crisis for anyone but the CEO and council management."
3. In an article in the same edition titled "Special Meeting Goes On, Legal Advice Says It's Not 'Unlawful'" Dr Fidge was quoted, "We can't have a CEO acting unlawfully."

1. Dr Fidge made the comments in respect of an inquiry into Council by the Local Government Inspectorate. He had made several complaints to the Inspectorate about Council actions. He genuinely held opinions that he had proper bases for his complaints.
2. Adding to Dr Fidge's concerns was the car park issue. It would not be owned by Council and Dr Fidge considered it unnecessary.

1. His first comment was to being asked whether the Council was in a crisis. His comment that "we can't have a CEO acting unlawfully" was a statement of fact, supported by legal advice. He was referring to how the car park special meeting was called.
2. Dr Fidge did not consider that the inquiry would result in a problem for anyone except for the CEO or the Management Team given their involvement in planning matters.
3. He disagreed he commented with wilful disregard for the health and safety concerns which the CEO had expressed. He did not believe the CEO's protestations about his health.[27] Dr Fidge said he bore the CEO no personal ill will. He was concerned with his work.[28]
4. In his view, he was acting in the best interests of the electorate.

Allegation 14 - e-mail to all councillors and Council management team

1. The allegation is Dr Fidge breached clauses 1, 2, 2.2(c), 2.2(g), 3.1.5, 3.2.3 and 8.3 of the Code because he sent an email dated 23 February 2013, in which he directed the following comment to the CEO:

I have great concerns about your handling of legal advice.

You are to table all legal advice you receive about Council business.

You can begin by tabling the advice which you say you received about the recent special meeting.

If this is not acceptable to you, I strongly suggest you resign as our moral compasses seem to be pointing in different directions.

I will also be raising your handling of legal advice with the Probity Auditor and the Inspectorate Investigation.

1. While Dr Fidge said he was not saying the CEO's moral compass was pointing in the direction of immorality, he was saying they had different views of what was moral in the situation. In cross-examination, Dr Fidge accepted here he strayed into a personal remark.[29]

1. The allegation was Dr Fidge breached clauses 1, 2, 2.2(g), 3.1.5, 3.2.3 and 8.3 of the Code because on 1 March 2013 he published on www.wangarattacity.com and Wangaratta Online:

I refer to the Special Meeting of Council next Thursday called, this time, by the Mayor in accordance with the Local Government Act.

It is passing strange that legal advice about the previous Special Meeting that the CEO does not like is "privileged" and never sees the light of day, but legal advice he does like gets its own Special Meeting to be discussed and digested at length.

Readers could be forgiven for thinking that Wangaratta Council is just a puppet, dancing to the CEO's tune. I certainly think that, and I'm a Councillor!

The meeting is to consider some legal advice provided to Council on behalf of the CEO outlining how to stop Councillors (usually me) talking to the media. The CEO has suggested that reports of his performance constitute bullying, and could cost Council up to $990,000 in fines. Of course, the advice is from a law firm the CEO has been using for decades, and the advice's bias reflects this. Council hasn't bothered to get the other side of the story, and have shown no interest when suggested this might be a sensible thing for Council to do.

Council was also very closed to the idea that if they or the CEO are embarrassed by publicity, they may be doing something wrong. The very clear message was that it is okay for Council or the CEO to act poorly, or even unlawfully, make poor decisions and show poor judgement, as long as no-one talks to the media about it.

Wangaratta Council must think they're in China, where the government controls the media and everyone toes the party line. The Ten Network has just changed CEOs, and that was reported on the front page of The Australian on the weekend. I have read dozens of stories about CEOs not performing and losing their jobs. So it is clearly normal, and I am quite confident the CEO has no right to stop councillors talking to the media about his performance, or lack of it. This is Australia. We are supposed to have democratic government, not dictators and free speech. Anyone, including councils, could talk to the media without fear of reprisal.

This is just like the demolition of the Soldier's Memorial Town Hall all over again. Close ranks, harass and intimidate anyone who has a different opinion or speaks publicly against Council, and force them to resign.

Wangaratta Council is not a democratic institution. It's a dictatorship with a thin veneer of faux democracy, and it just keeps getting worse. We'll probably have to have another Special Meeting to discuss this letter.

I won't be attending the Special Meeting, as I cannot be a party to this kind of serious misbehaviour. And I doubt the Mayor would let me speak anyway; as she has been quick to follow the CEO's advice to gag me. Your readers will know from your reports of Council meetings that I am not allowed to speak to "personal opinions", and that speaking about the Local Government Act is, according to the Mayor, a "personal comment". So good luck in finding out what Council is doing on your behalf, in your name, and with your money.

1. Dr Fidge:
   • (a) Said his comments related to the CEO's refusal to provide Council with legal advice he had obtained about the car park special meeting and the issue of what Dr Fidge considered the CEO's improper use of Council funds to obtain legal advice for himself concerning Dr Fidge's public criticisms of his work;
   • (b) Considered that the CEO should use his own funds to obtain his own personal legal advice; and
   • (c) Said his comments were made against a backdrop of the CEO's obstructive behaviour and sought only to inform the community of what was occurring.

Allegation 16 - e-mail to a list of unknown people including journalists in North East Victoria and Edge FM Radio station

1. The allegation was Dr Fidge breached clauses 1, 2, 2.2(c), 2.2(g), 3.1, 3.1.3, 3.1.5, 3.2.3, 8.1 and 8.3, because on 1 March 2013 he sent an email to journalists, including Edge FM Radio station, titled "It's an emergency. Yawn.":

None of these people have any role to play in these investigations, except for covering their asses. If these pricks had been in Rwanda with me in 1994, they'd understand the term 'emergency'.

1. Dr Fidge was commenting on the CEO engaging a consultant to provide high level executive support to the CEO and the Director of Sustainability for two months. The CEO had invoked an emergency provision to provide relief in dealing with the various lines of investigation associated with governance, code of conduct and inspectorate matters. Dr Fidge considered there were more than enough Council personnel to deal with these issues.
2. Dr Fidge's position before giving evidence concerning Allegation 16 was he did not intend for this email to become publicly available. Under cross-examination, he was provided with a copy of the email which caused him to agree he had sent it to more than one journalist. He apologised to the Tribunal for his mistake.
3. Dr Fidge accepted when he described the CEO and his staff as "pricks" in the email, that was personal abuse and insult and that he intended to cause journalists to publish.[30]
4. During cross-examination, an e-mail from the general manager of the radio station to the Council's communications manager was produced. It spoke of Dr Fidge calling the journalist at the radio station demanding she put to air his comments and to a breakfast announcer demanding to do talkback. Dr Fidge agreed he made calls but disagreed he made demands. He commented that as one generally wants journalists to be on your side, it would be unwise to be demanding.[31]

Allegation 17 - Comments in the Wangaratta Chronicle

1. The allegation was Dr Fidge breached clauses 1, 2, 2.2(c), 2.2(g), 3.1, 3.1.3 and 3.2.3 of the Code because he made comments, which were on 5 March 2013 the Wangaratta Chronicle published under the headline, "I May Have to Resign":

Originally Cr Fidge said he would not attend the meeting but yesterday told the Wangaratta Chronicle he had reluctantly changed his mind.

"I don't want to attend because it is childish nonsense", he said.

I am frustrated by the obvious bullying and toxic behaviour of some councillors and the council's management team.

"This meeting is to try and stand over me and I'm not going to be allowed to protest, but as an elected representative I can't not go to a council meeting."

Suggestions he has been bullying [the CEO] in the media were refuted by Dr Fidge.

I said I expected or would welcome his resignation. They are both truthful responses to public interest questions.

"I will not be changing anything and I doubt that council can force me to be silent", he said.

I would go as far to suggest that for council to debate silencing a councillor is unlawful.

I think that the special meeting on Thursday night is so childish, bullying, inappropriate and such an abuse of power by the mayor that the Minister for Local Government would be forced to consider sacking council and appointing an administrator".

1. A special meeting had been called by the Mayor to discuss Dr Fidge's media comments and legal advice that Council could be fined by WorkSafe for failing to provide a safe workplace for the CEO.
2. Dr Fidge considered the meeting inappropriate. The published comments were intended to let constituents know what was going on within Council, not to personally attack or denigrate the CEO.
3. He described his comments about the activities of the councillors and the council staff as toxic and damaging to council, playing a part in the Council's eventual dismissal.[32]

Allegation 18 - letter to the editor in Wangaratta Chronicle

1. The allegation was Dr Fidge breached clauses 1, 2, 2.2(g), 3.2.3, 8.1 and 8.3 of the Code because he wrote a letter to the Wangaratta Chronicle about the Everton Cenotaph, which was published on 15 March 2013:

It is truly amazing that all the options put to the Rural City of Wangaratta to protect the Everton cenotaph are so expensive.

Nothing is done and the minister is cleverly managed by his staff.

We already know what the community wants, because they told us in a deputation. ...

To go from none to 20 bollards is completely unreasonable.

From the lack of enquiry from the council management team, the lack of action, the unacceptable nature of the options provided and the repeating of a survey to try and change the request, I have been forced to conclude the council management team are trying to dissuade council from ever asking them for anything ever again.

And wasn't this request described as "urgent" by Council quite some time ago?

1. Dr Fidge considered his comments to be accurate and reasonable, made in response to the CEO's continued failure to implement Council's resolution to do something urgently to protect the Everton Cenotaph (see Dr Fidge's responses to Allegations 7 and 10).

1. The allegation was Dr Fidge breached clauses 1, 2, 2.2(c), 2.2(g), 3.2.3, 8.1 and 8.3 of the Code, because on 22 March 2013, he issued a press release.
2. He attached to the press release copies of letters written by McInerney, Atkins and Joyce who had requested the convening of a Councillor Conduct Panel, without obtaining their consent.
3. The press release said:

The [CEO] and the Director of Sustainability ... Have been deliberately exaggerating the normal tensions of newly elected council to the Minister for Local Government for some time in order to force me to resign, as they did [named councillor] in 2007.

[Draws attention to attached letters.] These letters prove that [the CEO] and [the Director of Sustainability] have deliberately and repeatedly mishandled complaints by sending them directly to the Minister for Local Government for action instead of following the procedures in our Code of Conduct.

Councillors Joyce, Atkins and McInerney have colluded with [the CEO] and [the Director of Sustainability] to mislead the Minister by specifically requesting this course of action. ...

The mishandling of the complaints by [the CEO], [the Director of Sustainability] and Councillors Joyce, Atkins and McInerney has been deliberately designed to exaggerate the current tensions in Council to the Minister by sending her every complaint that comes to hand, whether or not it is appropriate or required.

The actions of these Councillors and staff are politically motivated, bullying to me and damaging to the region. I call on [the CEO], [the Director of Sustainability] and Councillors Joyce, Atkins and McInerney to resign from their positions before they inflict more damage on the reputation of Wangaratta.

I further asked the minister to appoint an investigator as provided for in the Local Government Act to investigate the handling of these complaints. It is clear from the attached documents that the Code of Conduct is not the problem, as it has been comprehensively ignored and abused by these people.

1. Dr Fidge said his statements were true, identified as coming from Dr Fidge and did not purport to be representative of the Council.
2. The Joined Parties had made numerous complaints directly to the Minister for Local Government rather than following the dispute resolution procedure designated under the Code. These complaints were not provided to him first to allow him to reply or to consider the issue and attempt to resolve it. Dr Fidge considered there was no genuine attempt by the Joined Parties to resolve their grievances with him. They were politically motivated. He considered Council officers and certain councillors attempted to apply maximum pressure to him to resign.
3. He agreed he made very serious criticisms about the CEO and others, accused the CEO of misleading the Minister for Local Government and of pursuing a political agenda and called for his resignation, which he described as an escalation of what he was saying. He disagreed that his conduct demonstrated a complete lack of respect for the CEO and for his health concerns.[33]

1. The allegation was Dr Fidge breached clauses 1, 2, 2.2(c), 2.2(d), 2.2(g), 3.1, 3.1.5, 3.2.3 and 8.1 of the Code because he made the following comment in relation to councillors and council staff who had taken stress leave, which on 9 May 2013 was broadcast by ABC Radio:

I'm not surprised that they've gone off sick, they must be terribly ashamed of themselves.

1. Concerning the Management Team and the executive officer going on stress leave at the same time, with reference to an interview with the executive published in the Wangaratta Chronicle on 20 September 2013 concerning dismissal of the Council,[34] Ms Parisotto agreed this was part of industrial action. In her view, "there was also a component of stress".[35]

1. Dr Fidge provided these comments in response to five members of the Council Management Team going on sick leave simultaneously. It was claimed this was sick leave due to stress. In fact it amounted to industrial action. This cost Council enormously.
2. Dr Fidge also noted a news article dated 20 September 2013 in which a member of the Council Management Team, confirmed they went on sick leave to prove a point:

In the early stages we went on leave because the system supposed to support local government had failed Wangaratta... We needed to get the minister's attention to resolve what we believed was an untenable position (of workplace bullying by elected councillors and constant attacks on senior staffs' integrity).

1. The allegation was Dr Fidge breached Conduct clauses 1, 2, 2.2(g), 3.1.5, 3.2.3 and 8.3 of the Code because he made the following comments, which on 14 March 2013 were broadcast by ABC Radio:

I've been very disappointed with the Council's management team and the CEO specifically and I've made no secret of that. I think that they've failed to accept the results of the election and accept the wishes of the residents and it's been a hard slog in Council trying to get information and support from the Council management team.

1. Dr Fidge referred to his responses above in respect of the numerous issues he had faced with the CEO and Council Management Team. He considered his comments were an understandable reaction to the CEO's and the Council Management Team's ongoing obstructive behaviour.

Allegation 22 - Refusal to participate in pre-mediation interviews

1. The allegation was Dr Fidge breached clause 14 of the Code because between 15 February 2013 and 21 February 2013 he refused on three separate occasions to participate in pre-mediation interviews with Ms Cynthia Logan, a mediator appointed under clause 14 of the Code.

1. Dr Fidge gave evidence that the mediator provided him with an "Agreement to Mediate". The two-page document described a pre-mediation interview where "the mediator will explain the process, then understanding of the persons issues and agree on the logistics."
2. The letter also said:

The process is voluntary and the parties and the mediator have the right to withdraw at any time. The mediator requires that parties speak to the mediator if they wished to withdraw from the process. The mediator also has authority to terminate the session if deemed to be necessary.

1. Dr Fidge admitted he refused to attend one pre-mediation interview (not three), the purpose of which was to outline mediation practice and procedure only. He denied the alleged breach.
2. He said at all times he remained ready, willing and able to participate in the mediation process and to provide assistance to the mediator if requested.
3. Dr Fidge said he was intimately familiar with mediation processes, and did not consider it necessary to attend pre-mediation interviews in order to have the mediation process explained to him. He had recently completed a Department of Justice mediation course, and literature received from the mediator made it clear that the purpose of the pre-mediation meeting was simply to explain the process. Dr Fidge explained to the mediator he did not consider it was necessary for him to attend such a meeting.
4. Dr Fidge noted that by this point, the decision had already been made to convene a Panel, and the Joined Parties had made it clear that they would not participate in mediation.
5. In cross-examination, he agreed the content of an e-mail from him to the mediator was, "a bit grandiose and was unhelpful"[36].

Allegation 23 - Public campaign of denigration of Council's CEO

1. The allegation is Dr Fidge breached clauses 1, 2, 2.2(c), 2.2(g), 3.1, 3.1.2, 3.1.3, 3.1.5, 3.2.3, 8.1 and 8.3 of the Code on the basis of the conduct referred to in allegations 1- 4, 7, 8, 10 - 13, 15, 16, 18, 19, and 21 taken in their totality.
2. As I decided allegations 1 to 22, it was not necessary to address this allegation.

1. As the Panel did, I have found misconduct proven. However, with a sub-set of the allegations that were before the Panel before me, and taking a somewhat different approach, I set aside the Panel's decisions as made the following decision in substitution.
2. Under s81J(1)(a) of the Act I make findings of misconduct against Dr Fidge in relation to allegations 1, 2, 5, 7, 8, 10, 11, 12, 14, 16, 17, 18, 19 and 20.
3. I make no findings against Dr Fidge concerning allegations 3, 4, 6, 9, 13, 15, 21, 22 and 23.

1. For the purposes of deciding whether to make findings of misconduct, under s3 of the Act, "misconduct" by a councillor means conduct by a councillor that is in breach of the Code.
2. Under s 76C of the Act, in November 2009 the Council adopted a code of conduct (the Code), which was in force until Council was dismissed. The clauses of the Code cited in the allegations are at Appendix A and to an extent set out below. I also considered the balance of the Code.
3. I now discuss:
   • (a) The literal meaning of the Code, focusing on the clauses it is alleged Dr Fidge breached; and
   • (b) Whether it should be read down consistent with the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) and/or the implied freedom of political communication under the Australian Constitution.
4. The Code comprises 15 clauses over 18 pages.
5. While Dr Fidge is alleged to have breached all of clauses 1 and 2, clause 1 provided a general introduction and clause 2 in part continued that introduction via 19 "principles" set out in the first two paragraphs of clause 2. This introduction is of a general nature, difficult to apply with any certainty and largely duplicated by the clauses that follow. Therefore, I have not relied on it.
6. Clauses 2.1 and 2.2 are central to the Code. They import the Councillor Conduct Principles at s76B and s76BA of the Act, which the Act requires each Council to include in its Code.
7. Clause 2.1 says:

2.1 In carrying out our role as councillors, we will:

(b) impartially exercise responsibilities in the interests of the local community; and

(c) not improperly seek to confer an advantage or disadvantage on any person. .

2.2 In addition, in performing our role as councillors we will ...

(c) treat all persons with respect and have due regard to the opinions, beliefs, rights and responsibilities of other councillors, council officers and other persons;

(d) exercise reasonable care and diligence and submit to the lawful scrutiny that is appropriate to his or her office; ...

(g) support and promote these principles by leadership and example and act in a way that secures and preserves public confidence in the office of councillor.

1. Returning to clauses drafted by the former Council, clause 3 deals with "Councillor Behaviours". Dr Fidge is alleged to have breached:

3.1 Treating all people with courtesy and respect, recognising that there are legitimate differences in opinions, race, culture, religion, language, gender and abilities. This includes:

3.1.1 Treating members of the community with dignity and ensuring that neither offence nor embarrassment are caused

3.1.2 Treating fellow councillors with respect, even when disagreeing with their views or decisions

3.1.3 Debating contentious issues without resorting to personae acrimony or insult

3.1.5 Acting with courtesy towards Council staff and avoiding intimidatory behaviour.

3.2.3 Not acting in ways that may damage the Council or its ability to exercise good government

1. Clause 8 deals with "Relationships with Staff". Dr Fidge is alleged to have breached:

8.1 As councillors we will work as part of the Council team with the Chief Executive Officer and other members of staff. There must be mutual respect and understanding between councillors and officers in relationship to their respective roles, functions and responsibilities. ...

8.3 As councillors, we will be aware of the requirements. of Section 76E of Local Government Act 1989 and must not seek to improperly direct or influence members of Council staff in the exercise of their duties. It is appropriate to notify either the relevant Director or Manager when specific issues or particular functions are required to be undertaken.

1. Clause 14 deals with "Dispute Resolution Procedures". Dr Fidge is alleged to have breached:

If a mediator or conciliator is appointed, all councillors will cooperate with the dispute resolution process and provide reasonable assistance to the mediator or conciliator when requested.

1. It is evident that the clauses of the Code which Dr Fidge is alleged to have breached concern the manner of communication by a councillor with Council, council staff, the Council electorate and others.
2. Balanced against the Code's requirements as to conduct is the necessity for councillors to have the opportunity to keep constituents informed of affairs and for the Code of any Council to not disproportionately fetter political debate.
3. Section 63 of the Act requires councillors to swear an oath to undertake the duties of the office of Councillor in the best interests of the people in the municipal district and faithfully and impartially carry out relevant duties under the Act to the best of their skill and judgment.
4. At clause 10, the Code balances freedom of political expression and working together in an effective Council. It commences on the theme of working together in an effective Council:

As representatives of the community, we have a primary responsibility to be responsive to community views and to adequately communicate the attitudes and decisions of Council.

We will endeavour to ensure that the messages communicated are clear and consistent, and positively portray the Council as a decisive and responsible governing body.

1. It sets out communication roles for the Mayor, the CEO, councillors within their portfolio areas with the approval of the Mayor or Chief Executive (authorised beforehand or not) and the issuing of press releases. See Appendix A.
2. Clause 10.5 recognises the issue of councillor dissent from the majority view:

There may be times when a Councillor as an individual disagrees with a majority decision of the Council and wants the community to know that. Obviously Councillors are entitled to present their own views, particularly at election time, but in doing so Councillors should acknowledge that:

• as a member of the Council there is respect for the decision making processes of the Council which are based on a decision of the majority of the Council;
• an overriding concern ought to be in achieving a balance in the matters that are communicated and strive to achieve an outcome that presents the Council as effective and cohesive;
• the Mayor or some other specifically designated person is authorised to speak to the media and others on behalf of the Council;
• information of a confidential nature must not be communicated until it is no longer treated as confidential;
• information relating to decisions of the Council on approvals, permits and so on must only be communicated in an official capacity by a designated officer of the Council; and
• information concerning adopted policies, procedures and decisions of the Council is conveyed accurately.

The Charter of Human Rights and Responsibilities

1. Moving beyond the Act and the Code, in deciding the issues before me, the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) is to be considered.
2. Section 32 of the Charter relevantly says:
   1. Interpretation

(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

(a) an Act or provision of an Act that is incompatible with a human right; or

(b) a subordinate instrument or provision of a subordinate instrument that is incompatible with a human right and is empowered to be so by the Act under which it is made.

1. Section 3 of the Charter defines "statutory provision" to means an Act or a provision of an Act or a subordinate instrument of either. In my view the Code is a subordinate instrument and so subject to the Charter.[37]
2. Section 7 of the Charter says:
   1. Human rights - what they are and when they may be limited

(1) This Part sets out the human rights that Parliament specifically seeks to protect and promote.

(2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including -

(b) the importance of the purpose of the limitation; and

(d) the relationship between the limitation and its purpose; and

(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

(3) Nothing in this Charter gives a person, entity or public authority a right to limit (to a greater extent than is provided for in this Charter) or destroy the human rights of any person.

1. Sections 15 and 18 set out the two most directly relevant rights in this case:
   1. Freedom of expression

(1) Every person has the right to hold an opinion without interference.

(2) Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria and whether -

(3) Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary -

(a) to respect the rights and reputation of other persons; or

(b) for the protection of national security, public order, public health or public morality.

(1) Every person in Victoria has the right, and is to have the opportunity, without discrimination, to participate in the conduct of public affairs, directly or through freely chosen representatives.

(2) Every eligible person has the right, and is to have the opportunity, without discrimination -

(a) to vote and be elected at periodic State and municipal elections that guarantee the free expression of the will of the electors; and

(b) to have access, on general terms of equality, to the Victorian public service and public office.

1. In Nigro & Ors v Secretary to the Dept of Justice [2013] VSCA 213, the Victorian Court of Appeal with reference to the High Court's decision in usefully summarised the proper approach to applying the Charter.

Section 32(1) is not to be viewed as establishing a new paradigm of interpretation which requires courts, in the pursuit of human rights compatibility, to depart from the ordinary meaning of the statutory provision and hence from the intention of the parliament which enacted the statute. Accordingly, as was observed in Slaveski v Smith, the court must discern the purpose of the provision in question in accordance with the ordinary techniques of statutory construction essayed in Project Blue Sky. The statute is to be construed against the background of human rights and freedoms set out in the Charter in the same way as the principle of legality is applied. The human rights and freedoms set out in the Charter incorporate or enhance rights and freedoms at common law. Section 32(1) thus applies to the interpretation of statutes in the same way as the principle of legality but with a wider field of application.

The Australian Constitution

1. Turning to the Australian Constitution, it implies citizens to have a right to express their opinions on political and governmental matters.
2. Dr Fidge submitted his conduct involved him exercising his right of expression on political and governmental matters and discharging his responsibilities as a democratically elected representative of the local citizens of Wangaratta.
3. During his term of office at Council, before the Panel and in this proceeding Dr Fidge relied on this right to justify his statements. His counsel submitted the Code should be read down to only prohibit a councillor publicly criticising councillors or Council staff, when the criticism was not genuinely held by the Councillor. It would not be breached when a councillor criticised councillors or senior Council staff about the performance of their duties.[38] He submitted Dr Fidge's conduct could only constitute a breach of the Code if it could be classified as going culpably beyond the robust discharge of his role as a democratically elected representative of the local citizens of Wangaratta or if Dr Fidge acted without honesty and integrity.
4. I rejected that submission. Having considered detailed helpful submissions on behalf of the parties, relevant authorities, the Panel's views on this and learned commentary as discussed below, I agree with the Panel's statement in its reasons:

In order to ascertain whether Councillor Fidge has had his implied freedom of political communication breached, as he claims, by the Councillor Conduct Code, the High Court in Lange's case has provided a two limb test to assess whether the legislation is valid. The first limb of the test asks whether the law effectively burdens the freedom of political communication, while the second asks that where there has been such a breach, whether the law is reasonably adapted and appropriate to achieving the aim of effective representative and responsible government.

As Kirby J noted in Coleman v Power, the inquiry must begin by construing the relevant provisions. In the present scenario, using the Code to prevent Mr Fidge from using intimidating and insulting words when referring to other Councillors may be considered to be a limitation on his implied right to political communication given that, the nature of the topic, the character and ability of people in public office, is inherently political. However, the second step is to ask whether the Code is a reasonable instrument to facilitate the aim of representative government. In this regard, the Code should be construed as proportionate as it simply requires Councillors to carry out their duties with decorum and respect, which is integral to the effective function of governmental office and to the confidence of the public in the political system of Local Government. ...

The Councillor Conduct Code, insofar as the referrals before the Panel are concerned, does not prohibit the free speech of a Councillor, but requires it to be expressed with respect to other individuals and the processes and public reputation of the Council. The thrust of most of the complaints in the referrals is the lack of respect, intimidation and bullying in the comments of Cr Fidge. A restraint on such comments is a legitimate objective for the maintenance of representative government and is reasonably appropriate and proportionate to achieve that end.

1. I summarise various passages from Freedom of Speech in Australian Law: a Delicate Plant by M. Chesterman in the context of more recent authorities.[39]
2. In 1997, the High Court in Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520 decided the Constitution contained an implied freedom of communication so that electors have freedom to receive information about government and political matters in order that they may make informed political choices relating to the Commonwealth Parliament. This has not been limited to communications during election periods and has extended to matters of state territory and local government (eg. Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579).
3. That said, the extent to which the implied freedom extends in the State sphere remains open to debate. The Court has made clear that there must be some nexus between the communication for which protection is claimed and the making of informed choices by voters in Commonwealth Parliament elections or renderenda.
4. In Levy, a case concerning duck hunting protests in Victoria and Victorian regulations, the Court focused on and decided regulations limiting access to land reserved for duck hunting were reasonably appropriate and adapted to a legitimate legislative purpose. However, Brenan CJ and McHugh J doubted the connection between the message protestors wished to send to the people of Victoria concerning ducks and electing members to the Senate or the House of Representatives or the conduct of Federal Government.
5. That said, given the issue debated here is in part communications by a councillor, in most part in public, and all relevant to the operation of Council, given the cases in which the High Court has not rejected that such a nexus existed, I regard as appropriate to here apply the implied freedom.
6. In Lange, the Court said the implied freedom operates to prevent a law in Australia effectively burdening communication about government or political matters either in its terms or affect. A State or Territory law found to contravene the implied freedom would be invalid, at least to the extent of inconsistency. In Lange the Court found a pre-existing defamation law did not meet the requirements of the implied freedom because it did not sufficiently enable the people to communicate with each other concerning matters which could affect the choice when voting at the Commonwealth level. The Court extended the scope of common law defence of qualified privilege concerning defamation.
7. However, as decided in Lange as modified by Coleman v Power [2004] HCA 39; (2004) 220 CLR 1, the implied freedom was not to have effect if the relevant law was:

reasonably appropriate and adapted to serve to a legitimate end in a manner which is compatible with the constitutionally prescribed system of representative and responsible government in the procedure prescribed by section 128 for submitting a proposed amendment to the Constitution to the informed decision of the people.[40]

1. In 2014, in Tajjour v New South Wales; Hawthorne v New South Wales; Forster v New South Wales [2014] HCA 35 French CJ said:

The implied freedom of communication on governmental or political matters defines a limit on the legislative power of the Commonwealth, State and Territory Parliaments and informs the common law of Australia. The questions to be asked in determining whether an impugned law exceeds that limit were settled in Lange v Australian Broadcasting Corporation, and modified in Coleman v Power. They were recently restated in Unions NSW v New South Wales (2013) 88 ALJR 227; They are:

1. Does the impugned law effectively burden the freedom of political communication either in its terms, operation or effect?
2. If the provision effectively burdens the freedom, is the provision reasonably appropriate and adapted, or proportionate, to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative government? ...

[His honour further discussed the first question. Turning to the second question he noted the language of "legitimate ends" and laws "reasonably and appropriately adapted" in the second question may be traced back to the Supreme Court of the United States] ...

The criterion of validity to which the second question gives rise first requires that the impugned law serve a "legitimate end". That is a purposive standard, which must be satisfied by any law which effectively burdens the freedom. Satisfaction of that standard attracts to consideration of the law's validity the criterion which has long been applied to laws purportedly made pursuant to grants of purposive law-making powers and, as a subset of that category, express or implied grants of incidental law-making powers. That criterion, that the law be "reasonably appropriate and adapted, or proportionate" to serve the legitimate end, is a species of the genus of proportionality tests. Such tests apply to constitutional grants of purposive powers and to statutory grants of power to make delegated legislation, but not to non-purposive powers. They apply to what might broadly be called "public interest qualifications" on other constitutional guarantees, particularly s 92. The term "proportionality" in this context is classificatory. It does not designate a doctrine. Some of the proportionality criteria apply a high threshold test for invalidity, asking whether the impugned law is "capable" or "reasonably capable" of being appropriate and adapted to the relevant purpose. That kind of formulation has sometimes been used in relation to the implied freedom of political communication. A negative answer to the question, so framed, would be sufficient for invalidity. However, a positive answer is not sufficient for validity. The second question, as recently restated in Unions NSW, requires the low threshold proportionality test for invalidity to be applied in cases involving the implied freedom.

In the joint judgment in Unions NSW 2013 88 ALJR 227, it was said that:

"The inquiry whether a statutory provision is proportionate in the means it employs to achieve its object may involve consideration of whether there are alternative, reasonably practicable and less restrictive means of doing so."

[With reference to the joint judgment of Crennan, Kiefel and Bell JJ in Monis v The Queen [(2013) 249 CLR 92] at 214, French CJ said]:

The cautionary qualification that alternative means be "obvious and compelling" ensures that consideration of the alternatives remains a tool of analysis in applying the required proportionality criterion. Courts must not exceed their constitutional competence by substituting their own legislative judgments for those of parliaments.

1. In Tajjour, while the other judges used different words, the restated version of Lange continues to be the law.
2. I regard the Code, relevant to the allegations made against Dr Fidge, to be for the most part:
   • (a) Relevant to the Charter, set reasonable limits demonstrably justified in a free and democratic society based on human dignity, equality and freedom; and
   • (b) Relevant to the constitutionally implied freedom, to be reasonably appropriate and adapted, or proportionate, to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative government;

apart from an element of clauses 10.5 as discussed below.

1. This is so because the Code, as relevant to the allegations, address the mode of communication by councillors (eg. clauses 3.1) and the balancing of councillors' rights to express political views with competing rights of others (eg. clauses 2.2(c) in part). I do not regard the Code as overly restricting councillors in making public statements concerning issues before Council or Council's operations, where that is done with respect, courtesy and without individual attack.
2. Also, the Code applies in the unique circumstances of local government. Those circumstances were described in the Victorian Government's, 'Better Local Governments Consultation Paper November 2007', a precursor to the Code's creation.
3. In his preface to the publication, the Minister for Local Government said

One part of this better local government reform is the government's commitment to address issues of council conduct. This responds to concerns raised within local government and in the wider community. ...

While I believe that the overwhelming majority of councils behave ethically and professionally, there are occasions when the actions of individual councillors can instruct effective local governments. It is essential to address such matters. In doing so however, it is important to ensure proper balance between the democratic nature of local government and the need to support effective governance.

The office of councillor, while having its own rewards, is a demanding role. It requires a person to consider and decide on many, often contentious, issues that directly affect the way people live, work or conduct business in the musicality.

From time to time, the conduct of individual councillor may become a cause for concern. The seriousness and nature of such conduct can vary substantially.

At a very basic level, council may fail to act appropriately in meetings and making properly disrupt statutory decision-making processes. (This should not be confused with legitimate debate, where an individual councillor expresses opinions different from majority). ...

1. I rejected the submission that the Code should be applied through the prism of the types of strident criticism of politicians found during question time in the Federal Parliament and the other Parliamentary arenas. Several of Paul Keating's more colourful descriptions of his opponents were cited as illustrative of that submission. However, a local Council with volunteer part-time councillors is a world away from parliamentary question time and similar arenas.
2. I return to the (rejected) submission on behalf of Dr Fidge that only culpable conduct beyond the robust discharge of his role as a democratically elected councillor would breach the Code. I disagree that the High Court's decisions in Coleman and in Monis v R lead to that conclusion.
3. Coleman concerned the conduct required to breach provisions of the Vagrants, Gaming and Other Offences Act 1931 (Qld) and the Police Powers and Responsibilities Act 1997 (Qld). A man distributed pamphlets charging police corruption. In judging proportionality of restriction of the implied right, as each case should be judged on its circumstances and circumstances in Coleman are far removed from those here, it does not persuade me to the submitted position.
4. _Moni_s concerned a provision of the Criminal Code (Cth) and letters sent to parents and relatives of soldiers killed on active duty in Afghanistan which are critical of the involvement of the Australian military forces and reflect upon the part played in it by the deceased soldiers in a derogatory and insulting fashion. In Monis, the High Court was equally divided and so the decision on appeal from the Supreme Court of New South Wales (Court of Criminal Appeal) was affirmed. Therefore, this decision is of little precedent value.
5. I have read clauses 10.5 down so far as it may be taken to at all times require councillors to, unreasonably in a given context, present Council as effective and cohesive, when disagreeing with a decision or on an issue. I refer to:
   • an overriding concern ought to be in achieving a balance in the matters that are communicated and strive to achieve an outcome that presents the Council as effective and cohesive.
6. While I agree that is in many cases a reasonable approach, consistent with disagreeing on an issue while respecting Council processes, there will be times that respectful disagreement with both issue and process is required.
7. Apart from that, clause 10.5 makes it clear councillors may present their individual views to the community. Consistent with the clauses Dr Fidge is alleged to have breached, 10.5 requires respect, forbids communication of confidential information and accuracy. I have viewed clauses 10.5 for the most part supporting the requirement that councillors play the ball, not the person.

1. Dr Fidge is an honest person with strong beliefs. I accept, as submitted on his behalf, his point has always been about his fundamental right to express his opinions to the public on matters to do with the Council and its work. I accept he genuinely believes he was elected on a reform platform, faced resistance in his role as a councillor, took strong but appropriate action to discharge his obligations and did not engage in misconduct.
2. The allegations do not challenge his honesty. I rejected submissions that I should be sceptical of his evidence because in giving oral evidence it became necessary for him to change earlier evidence. While this happened, I accept this was a result of Dr Fidge being mistaken in his earlier evidence and he did not intend to mislead.
3. However, I find Dr Fidge breached the Code on 14 occasions. Speaking broadly, under the Code it is not open to a councillor to continuously and relentlessly, 'play the person, not the ball'.
4. Also, in the context of local government, where councillors are unpaid volunteers performing a critical role for their communities, Parliament via the Act requiring codes of conduct, intended that 'the ball' be played with respect, courtesy in the context of other's rights. This is critical to the good governance and functioning of Council.
5. Under s81J(1)(a) of the Act I made findings of misconduct against Dr Fidge in relation to allegations 1, 2, 5, 7, 8, 10, 11, 12, 14, 16, 17, 18, 19 and 20.
6. I made no finding against Dr Fidge concerning allegations 3, 4, 6, 9, 13, 15, 21, 22 and 23.
7. I now address each of the allegations, to be read in the context provided above.

1. I find Dr Fidge breached clauses 2.2(c), 2.2(g), 3.1, 3.2.3 and 8.1 in publishing on Facebook allegations that senior Council officers treated residents with contempt, that the CEO and senior Council managers performed poorly, treated residents "like dirt or worse" and were conspiring to replace him. He said he would prefer they resigned.
2. I find Dr Fidge breached clauses 2.2(c) because he failed to treat at least the CEO and probably senior staff with respect to their contractual and legislative rights arising under their employment. If they were facing a complaint under formal avenues, their right to natural justice would be afforded.
3. The evidence before me includes evidence as to the process within Council, by which Dr Fidge could have sought to agitate against the CEO via review of his employment contract or formal complaint mechanisms. Perhaps formal mechanisms could also be employed against senior staff. However, as there is no evidence concerning the employment contracts of senior staff, I make no finding on that issue.
4. Concerning the CEO, I rejected the submission that Dr Fidge's criticism of him did not breach the Code as it should be read down, given his role is in some sense equivalent to that of the Prime Minister in a parliamentary sphere. That is not so. He is the employee of Council, and responsible to Council as an employee. I similarly reject the submission that given high-profile CEOs are often criticised in the press that Dr Fidge's criticism fails to breach the Code. For example, Mr Joyce, the Qantas CEO was heavily criticised when he grounded the Qantas air fleet during an industrial dispute, While such criticisms are made of CEOs, I cannot recall the criticism coming from the Board of the company in public.
5. I find Dr Fidge breached clauses 2.2(g) in that he failed to provide leadership as a councillor by not acting in a way that secured public confidence in the office of councillor. To do so, rather than resorting to public attack, he had the option of pursuing formal channels.
6. I find Dr Fidge breached clauses 3.1 in that he resorted to insult of the CEO and senior staff in saying as Council employees they treated residents like dirt.
7. I find Dr Fidge breached clauses 3.2.3. His broad public attack, insofar as it incorporated direct allegations against those concerned risked damaging Council's ability to exercise good government, particularly when the new Council had barely started its real work.
8. I find Dr Fidge breached clauses 8.1. His broad public attack the day after he took office constitutes a failure to work as a team member. I repeat my above observations about their being formal avenues to pursue his concerns.
9. I find no breach of clauses 3.1.3 (I do not regard his conduct as part of a debate) and 3.1.5 (I do not regard his conduct as intimidatory).
10. It is convenient to state here I also find no breach of clauses 8.3 with respect to Allegation 1, nor with respect to any of the allegations. Clause 8.3 prohibits, consistent with s 76E of the Act the improper directing or influencing members of council staff in the exercise of their duties. I do not accept the reach clauses 8.3 extends to broad statements made in a newspaper article. To the extent Dr Fidge was seeking resignations, the clause does not apply, given its focus relates to how people carry out the duties, not on ceasing to perform any duties.

1. I find Dr Fidge breached clauses 2.2(g), 3.1.5, 3.2.3 and 8.1 in publishing on Facebook an aggressive call for co-operation or resignation.
2. I repeat my reasons concerning Allegation 1, concerning his comments about the CEO resigning.
3. The text was unacceptably aggressive in tone and breached the Code as it required maintenance of the office of councillor, courtesy, avoiding damage to Council and its ability to exercise good government and respect and understanding between councillors and officers.

1. Allegation 3 was not proven.
2. I accept this publication was on Dr Fidge's private Facebook, available to family and friends. Contents Dr Fidge intended to remain in the private arena should not provide a basis for a finding of misconduct. No doubt all councillors say things to those in their circles which they do not say in public.

1. Allegation 4 was not proven.
2. Dr Fidge gave evidence that he made these comments when he said he had decided to make a formal complaint. Ms Parisotto gave evidence that the first she knew of the complaint was when the media called her for comment.
3. While it would have been polite to advise Ms Parisotto before she found out in the media, I regard this as Dr Fidge playing the ball, not the person, including expressing his view that the situation was "highly unprofessional, inappropriate, rude and a farce."

1. I find Dr Fidge breached clauses 2.2(c), 3.1 and 3.1.2.
2. His email to each other councillor, about the provision of letterhead, which they could well interpret as him describing them as "toxic" and "half-wits" was highly discourteous and personally insulting the councillors.
3. I note Ms Parisotto's evidence that in 13 years on Council she had never heard a councillor call another councillor "toxic". She found it very disturbing and said other councillors were very angry and very upset.
4. In sending the email, he failed to have due regard to the opinions, beliefs, rights and responsibilities of other councillors and council staff and failed to treat his fellow councillors with respect.

1. Allegation 6 was not proven.
2. I agree Dr Fidge's letter to the Yarrawonga Chronicle saying the Mayor of Moira Council needed a "kick in the pants" for his unprofessional conduct, failed to demonstrate respect from a councillor to the mayor of another Council.
3. Dr Fidge had no direct knowledge of and no responsibility concerning the affairs of Yarrawonga Council. He relied on his position as a councillor to lend credence to his opinions.
4. However, I reject that the Code should be interpreted such that clause 2.2(c) should be interpreted to, by including the words "other persons", extend its reach to this conduct not directly connected to the good governance of the Wangaratta Council.
5. While it would be open to a Council to address the issue in a code of conduct, that was not done here.

1. I find Dr Fidge breached clauses 2.2(c), 2.2(g), 3.1, 3.1.5, 3.2.3 and 8.1.
2. I take no issue with Dr Fidge reporting via the newspaper to his constituents that Council had called for the protection of the Everton Cenotaph and to date no protection had been provided.
3. However, a reasonable reader of the newspaper article reading about claimed non-action concerning the Cenotaph, would have understood Dr Fidge alleged Council staff could not accept the war memorial was important and deserved preservation and would not take reasonable steps to protect it. He could also be understood to say a new CEO was needed as the current CEO would not obey the law and did not respect residents and Council.
4. These 'allegations' by Dr Fidge fell well short of the respect and courtesy a councillor should extend to Council staff (and here he referred to all council staff) including the CEO, preservation of public confidence of the office of councillor, courtesy and respect. He risked damaging Council and its ability to exercise good government and failed to work as part of the Council team.
5. His call for a new CEO and his allegations about the CEO's conduct had no place in the public arena. If he wished to pursue that, he could have done it within Council. If at that relatively early stage he knew or suspected he would not find support at Council, that did not justify his action.

1. Dr Fidge breached clauses 2.2(c), 2.2(g), 3.1, 3.1.5, 3.2.3 and 8.1.
2. He was entitled to be quoted in the Border Mail article concerning his victory in having the motion passed to restrict the engagement of consultants.
3. He breached the Code by saying he would be very happy to receive the CEO's resignation. I repeat my reasons concerning his comments about the CEO resigning.

1. Allegation 9 was not proven. See my comment about clause 8.3 above (Allegation 1).
2. Also, in my view this email about the PA and projector sent only to the CEO and councillors, while abrupt and somewhat high-handed, did not breach the Code either in content or style.

1. Dr Fidge breached clauses 2.2(c).
2. Again, I take no issue with Dr Fidge reporting the Cenotaph issue.
3. Here, in my view he overstepped the mark in his criticism of the CEO and his claim that the Management Team were realising the CEO was making Council's job much harder. There is no evidence before me to support such a claim. Rather, it appears until they went on leave the Management Team supported the CEO.
4. In my view, he failed to accord the CEO and the Management Team appropriate respect.
5. Dr Fidge in part justified his actions with reference to clauses 10.5 of the Code. I am not satisfied Dr Fidge was accurate in his statement, as the clause says is appropriate.

1. Dr Fidge breached clauses 2.2(c), 3.1, 3.1.5, 3.2.3 and 8.1, only with respect to him saying the incident further eroded his confidence in the CEO and Management Team.
2. It is understandable Dr Fidge was annoyed by the public release of Ms Mirabella's letter. However, his criticism of the CEO and Council management lacked respect and courtesy, risked damage to the Council or its ability to exercise good government, and constituted failure to work as part of the team.
3. There was no evidence the CEO or team were at fault. I agree with Ms Parisotto's view that it was unremarkable that a congratulatory letter would be regarded as official correspondence. Once in Council's possession it would be subject to release under the Freedom of Information Act 1982, unless exempt on some basis. A basis for exemption is not immediately apparent. While a person or persons employed by Council may have breached duties as an employee, there is no proof the CEO or management team were in any way involved.

1. Dr Fidge breached clauses 2.2(c), 2.2(g), 3.1.5 and 3.2.3.
2. In my view, in his public response on the important issue of an upcoming enquiry about Council's performance, saying he "was in the very comfortable position of not giving a shit", he did not act in a way that treated relevant persons with respect, failed to secure and preserve public confidence in the office of councillor, failed to act with courtesy and risked damage to Council and its ability to exercise good government.
3. I repeat my earlier reasons relating to Dr Fidge's comments concerning the CEO resigning.

1. Allegation 13 was not proven.
2. Dr Fidge's statement that the risk of an administrator being appointed was only a crisis for the CEO and Council management is within the realm of political comment.
3. While he criticised the CEO's actions with respect to the special Council meeting, his remarks were temperate in the context of the balance of the article where Ms Parisotto disagreed with him. While Dr Fidge is quoted as alleging the CEO had acted unlawfully, in context it is clear this comment relates to meeting procedure, not corruption or criminality.

1. Dr Fidge breached clauses 2.2(c), 2.2(g), 3.1.5 and 3.2.3 of the Code.
2. Dr Fidge criticised the CEO's handling of legal advice and said, "our moral compasses seem to be pointing in different directions". He has conceded he made a critical personal remark. A reasonable recipient of the email would have concluded he was being called on to resign as his morality was questioned.
3. Dr Fidge failed to act with respect, courtesy and risked damaging Council's ability to exercise good government. I repeat my reasons concerning Dr Fidge's comments about the CEO resigning.

1. Allegation 15 was not proven.
2. Dr Fidge's very strong letter to the editor is in my view an example of him engaging in political discussion. While he had contributed to what was being described as a crisis at Council, the reality was the situation was in the public arena.
3. It was clear he was expressing his opinions, not Council's.

1. Dr Fidge breached clauses 2.2(c), 2.2(g), 3.1, 3.1.3, 3.1.5, 3.2.3 and 8.1 of the Code.
2. As described above, in the course of giving evidence Dr Fidge accepted when he described the CEO and his staff as "pricks" in the email, that was personal abuse and insult and he intended to cause the journalists to publish. In context of my views in this proceeding, nothing else need be said about the allegation.
3. I note I accept Dr Fidge did not with respect to this allegation attempt to mislead VCAT. I have accepted his apology for an inadvertent mistake.

1. Dr Fidge breached clauses 2.2(c), 2.2(g), 3.1, 3.1.3 and 3.2.3 of the Code.
2. For the reasons given above, Dr Fidge speaking of obvious bullying and toxic behaviour of some councillors and the Council's management team and calling for the CEO's resignation breached the Code.

1. Dr Fidge breached clauses 2.2(g), 3.2.3 and 8.1 of the Code.
2. I have no difficulty with Dr Fidge's comments about the expense of protecting the Cenotaph, or his references to Yes Minister. However, in my view he breached the Code with this paragraph accusing the Council Management Team of a lack of action. That was an issue properly raised within Council.

1. Dr Fidge breached clauses 2.2(c), 2.2(g), 3.2.3 and 8.1 of the Code.
2. In his press release, he was attacking the applications to the Panel which in part led to this proceeding. He went beyond political comment in accusing the CEO and others of serious misconduct, bullying and of damaging the Wangaratta region.
3. He concluded by asking the Minister to appoint an investigator to investigate the handling of applications to the Panel. That was a request to be made, using the proper procedures, not via the media.

1. Dr Fidge breached clauses 2.2(c), 2.2(g), 3.1, 3.1.5, 3.2.3 and 8.1 of the Code.
2. His comment about the Management Team, "I'm not surprised that they've gone off sick, they must be terribly ashamed of themselves.", showed lack of respect and courtesy, failed to support the Councillor Conduct Principles by way of example, risked damaging Council and its ability to exercise good government and was a failure to act as a member of the team.
3. While I accept the evidence that in part the management teams going on leave was an industrial action, I also accept Ms Parisotto's evidence that it was also in part a product of at least some of the individuals genuinely suffering ill health as a result of workplace stress.

1. Allegation 21 was not proven.
2. Dr Fidge described on ABC radio his disappointment with Council's management team and the CEO specifically, with them in his view having failed to have accepted the election result.
3. That was general political comment.

1. Allegation 22 was not proven.
2. Dr Fidge failed to appropriately cooperate with the mediator. It is clear from the documentation he received that as well as discussing the mediation process, part of the meeting's purpose was for the mediator to understand in private Dr Fidge's position.
3. It appears his somewhat grandiose e-mail to the mediator led her to conclude, I assume not lightly and probably having regard to the context, that the mediation should be abandoned.
4. However, clause 14 of the Code must be read in context of the mediation process. The mediator had written to Dr Fidge saying the mediation process was voluntary. Given it was voluntary, he cannot have breached the Code by exercising his right as to the extent of his participation in the process. I have no reason to conclude he expected his action to result in the cancellation.

1. This allegation, which is some form of 'roll-up' of previous allegations which I have dealt with individually does not serve a useful process. I have not addressed it.

1. I have scheduled a further hearing in this proceeding in mid December to hear submissions concerning further orders under s81J of the Act. Having found misconduct, the Panel decided to reprimand him and suspended him from Council for two months.
2. The question before me is given I have found misconduct, what is now the correct and preferable decision with respect to that aspect of this proceeding? Dr Fidge must be accorded natural justice before I decide that.
3. If practicable, this proceeding should end this year.
4. However, with Dr Fidge probably busy at his general practice in Wangaratta, it may be that one or both parties will seek to have the further hearing adjourned into the new year.

This Code, which incorporates the statutory requirements specified for a Code of Conduct in accordance with section 76C of the Local Government Act 1989, was adopted by resolution of the Rural City of Wangaratta on 17 November 2009.

As councillors of the Rural City of Wangaratta we are committed to working together in the best interests of the people within our municipality and to discharging our responsibilities to the best of our skill and judgment.

We acknowledge our responsibilities as custodians of the assets of the municipal district. We understand our role is part of the corporate team in which the community has placed its trust and to make decisions on its behalf. The community is entitled to expect high standards of conduct from its elected representatives.

Our commitment to working together constructively will enable us to achieve "the ultimate in liveability" in a manner that is consistent with our values:

We aim to achieve the highest standard in everything we do.

We have confidence in the ability and commitment of others and ourselves.

We see all people as being valuable acknowledging individuality, opinions, needs and abilities.

We foster community engagement in our decision making process and encourage honest communication in all dealings.

We treat all colleagues and customers fairly and consistently. We promote equality and ensure resources are allocated according to need.

We promote a harmonious and productive workplace by celebrating achievement in an environment where everyone feels they belong.

The primary role of the Council is to provide leadership for the good governance of the Rural City of Wangaratta. The role of the Council also includes:

1.1 actions a representative government by taking into account the diverse needs of the local community in decision making;

1.2 providing leadership by establishing strategic objectives and monitoring their achievement;

1.3 maintaining the viability of the Council by ensuring that resources are managed in a responsible and accountable manner;

1.4 advocating the interests of the local community to other communities and governments;

1.5 acting as a responsible partner in government by taking into account the needs of other communities; and

1.6 fostering community cohesion end encouraging active participation in civic life.

(a) achieving a balance in the diversity of community views to develop an overall strategy for the future of the municipal district;

(b) setting the objectives and determining strategies to achieve the Council's corporate objectives identified in the corporate plan;

(c) achieving sound financial management and accountability in relation to the Council's finances;

(d) ensuring that appropriate mechanisms are in place to deal with the prompt handling of residents' concerns;

(e) promoting economic and social development in the best interests of the municipal district;

(f) working with other governments and organisations to achieve benefits for the community at both a local and regional level;

(g) monitoring the performance of the corporate plan and that of the Council's Chief Executive Officer; and

(h) having an awareness of the statutory obligations imposed on Councillors and Councils.

We have agreed that the following principles will guide us in the carrying out of our responsibilities and working as a team over the next four years:

1. Freely share the information and knowledge that we have available
2. Respect each other as Councillors, between Councillors and staff and vice versa
3. Won't play favourites
4. Encourage healthy debate
5. Support each other
6. Remain loyal to our vision
7. Be tolerant to each other's views
8. Focus on our shared vision
9. Be disciplined in how we come to decisions
10. Show solidarity once a decision is made
11. Work on the basis of "No surprises"
12. Not allow the trivial to dominate the important
13. Not undermine each other.
14. Regularly review how we are working as a team and work to continually improve
15. Focus on the big picture
16. Respect the roles of the individual, the Council and the organisation
17. Work for the best interests of the community
18. Demonstrate pride in the organisation
19. Be efficient in the way we approach Council business

We also endorse and agree to the following Councillor Conduct Principles specified in sections 76B and 76BA of the Act:

2.1 In carrying out our role as councillors, we will:

• (a) act with integrity; and
• (b) impartially exercise responsibilities in the interests of the local community; and

(c) not improperly seek to confer an advantage or disadvantage on any person.

2.2 In addition, in performing our role as councillors we will:

(a) avoid conflicts between public duties as a council for and personal interests and obligations;

(b) act honestly and avoid statements (whether oral or in writing) or actions that will or are likely to mislead or deceive a person;

(c) treat all persons with respect and have due regard to the opinions, beliefs, rights and responsibilities of other councillors, council officers and other persons;

(d) exercise reasonable care and diligence and submit to the lawful scrutiny that is appropriate to his or her office;

(e) endeavour to ensure that public resources are used prudently and solely in the public interest;

(f) act lawfully and in accordance with the trust placed in us an elected representative;

(g) support and promote these principles by leadership and example and act in a way that secures and preserves public confidence in the office of councillor.

We confirm that we will adhere to the following principles of behaviour in our general conduct as councillors:

3.1 Treating all people with courtesy and respect, recognising that there are legitimate differences in opinions, race, culture, religion, language, gender and abilities. This includes:

3.1.1 Treating members of the community with dignity and ensuring that either offence nor embarrassment are caused

3.1.2 Treating fellow councillors with respect, even when disagreeing with their views or decisions

3.1.3 Debating contentious issues without resorting to personae acrimony or insult

3.1.4 Ensuring their punctual attendance at Council and committee meetings

3.1.5 Acting with courtesy towards Council staff and avoiding intimidatory behaviour.

3.2.1 Being honest in all dealings with the community, with other councillors and with Council staff

3.2.2 Always acting with impartiality and in the best interests of the community as a. whole

3.2.3 Not acting in ways that may damage the Council or its ability to exercise good government

3.2.4 Exercising reasonable care and diligence in performing their functions as councillors

3.2.5 Complying with all relevant laws, be they Federal, State or Local Laws.

3.3 Recognising that we hold a position of trust which we will not misuse or derive undue benefit from our positions:

3.3.1 We will avoid conflicts of interest and comply with the relevant provisions of the Act and this Code of Governance relating to interests and conflicts of interest

3.3.2 We will not exercise undue influence on other councillors, members of Council staff or members of the public to gain or attempt to gain an advantage for ourselves.

4.1 We are committed to making all decisions impartially and in the best interests of the whole community and acknowledge that effective decision-making is vital the democratic process and an essential component of good governance. Accordingly:

4.1.1 We will actively and openly participate in the decision making process, striving to be informed to achieve the best outcome for the community.

1. Use of council resources (including funds and property)

Councillors will be provided with a general meeting room at the municipal offices from which they can conduct their Council business. A telephone will be provided in this room, and each Councillor will be provided with a filing cabinet.

Councillors may access stationery, photocopying and postage or distribution of correspondence relating to Council business through the Executive Secretary.

The Executive Secretary will also provide limited typing support for Councillors on necessary Council business.

No Council support will be provided to Councillors for private purposes, including electioneering purpose

The Council shall, upon request, provide Councillors with standard stationery held or obtained generally for the organisations requirements.

The stationery may include, but not necessarily be limited to, paper, business cards, writing implements, diaries writing pad/books, computer discs and paper envelopes and the like.

8.1 As councillors we will work as part of the Council team with the Chief Executive Officer and other members of staff. There must be mutual respect and understanding between councillors and officers in relationship to their respective roles, functions and responsibilities.

8.3 As councillors, we will be aware of the requirements. of Section 76E of Local Government Act 1989 and must not seek to improperly direct or influence members of Council staff in the exercise of their duties. It is appropriate to notify either the relevant Director or Manager when specific issues or particular functions are required to be undertaken.

10.5 There may be times when a Council as an -individual disagrees with a majority decision of the Council and wants the community to know that. Obviously Councillors are entitled to present their own views, particularity at election time, but in doing so Councillors should acknowledge that:

• as a member of the Council there is respect for the decision making processes of the Council which are based on a decision of the majority of the Council;
• an overriding concern ought to be in achieving-a balance in the matters that are communicated and strive to achieve an outcome that presents the Council as effective and cohesive
• the Mayor or some other specifically designated person is authorised to speak to the media and others on behalf of the Council;
• information of a confidential nature must not be communicated until it is no longer treated as confidential;
• information relating to decisions of the Council on-approvals, permits and so on must only be communicated in an official capacity by a designated officer of the Council; and
• information concerning adopted policies, procedures and decisions of the Council is conveyed accurately.

Should a grievance or dispute arise between Councillors of the Rural City of Wangaratta, the parties shall confer in good faith with a view to resolving the matter closest to the source and in an expeditious and dignified manner in accordance with Councillors' Grievance and Dispute Resolution Procedure.

Before commencing any formal dispute resolution process, the councillors who are parties to any disagreement will endeavour to resolve their differences in a courteous and respectful manner, recognising that they have been elected to represent the best interests of the community.

If the Chief Executive Officer receives advice in writing from one or more councillors that they are unable to effectively perform their role because of a dispute between councillors and that attempts to resolve the dispute have not been effective. the Chief Executive Officer will arrange for the Mayor to mediate the dispute.

If the dispute involves the Mayor or mediation by the Mayor has not been successful in resolving the dispute, the Chief Executive Officer will:

1. Arrange the appointment of an independent and suitably qualified mediator or conciliator who is acceptable to the councillors who are the parties in the dispute;
2. Decide to seek advice from the Municipal Association of Victoria, the Victorian Local Governance Association, or another appropriate external organisation. to identify a suitably qualified mediator or conciliator; or

The Chief Executive Officer may only decide that a mediator or conciliator will not be appointed if one of the following applies:

1. The dispute is limited to matters of policy and decision making;
2. An alternative approach, which is demonstrated to be more appropriate to the. particular circumstance is approved.

Irrespective of the above, the Council will not undertake a dispute resolution procedure if it appears that the procedure is likely to overlap with an election period for a council election.

If a mediator or conciliator is appointed, all councillors will cooperate with the dispute resolution process and provide reasonable assistance to the mediator or conciliator when requested.

In the event that a dispute cannot be resolved through application of these processes, it may be referred to a Councillor Conduct Panel.

If the dispute relates to an apparent offence under the Local Government Act it should be referred to the Minister for Local Government and not the subject of an application to a Councillor Conduct Panel.

[1] Second Reading Speech, Local Government (Rural City of Wangaratta) Act 2013, Hansard 19 September 2013, page 3238.

[2] Ms Parisotto used the term "Council". However, I did not take this literally.

[3] While the "Yarrawonga Newspaper" was referred to in the evidence, a web search indicates its name is the Yarrawonga Chronicle.

[14] Transcript. page 210. Given the evidence concerns privileged legal advice, this is a shorthand description.

[15] Transcript, page 236. Given the evidence concerns privileged legal advice, this is a shorthand description.

[16] I accepted Dr Fidge's evidence that the following comment on his post was not his, see Transcript, page 92.

[26] While Dr Fidge first gave evidence he received the advice before making statement (Transcript, page 215) once he produced the advice, it became clear and he agreed he sought and obtained the advice after making the statement (Transcript, page 229).

[37] See s18, Interpretation of Legislation Act 1984.

1. [40] (Lange at 567 as modified by Coleman, see McHugh J at 50 with whom Gummow, Kirby and Hayne JJ agreed).