Local Government Act 1993 Div 3A, ss 28V(3)(f), s28X(2), 28Y, 28ZE(1)(a),(b) and (4),28ZP

Local Government (Code of Conduct) Amendment Act 2015

Local Government Model Code of Conduct Principal VIII

Magistrates Court (Administrative Appeals Division) Act 2001, s 26(3)(c)

Vagrants, Gaming and Other Offences Act 1931 (Qld), s 7(1)(d),

Police Offences Act 1935.

Acts Interpretation Act 1931, s 16(1)(c)).

Qantas Airways Ltd v Christie (1998) 193 CLR 280 at 332 per Kirby J, Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 359 per Mason CJ and Gaudron J).

Australian Capital Television P/L & NSW v The Commonwealth [1992] HCA 45; (1992) 177 CLR 106; Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 and Lange v ABC [1997] HCA 25; (1997) 189 CLR 520).

Commissioner of Police v Reid [2000] TASSC 181

Republic of Costa Rica v Erlanger [1876] 3Ch D 62 at 69

Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261

Coleman v Power [2004] HCA 39; 220 CLR 1

Ball v McIntyre (1966) 9 FLR 237;

Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 109 / (1994) HCA 46

Decision Number: [2019] TASMC 6

The original complaint and the decision appealed from

1. Mutual Valley is a forested valley just outside the town of Derby in North-East Tasmania. In recent years the township of Derby has become popular with mountain bikers owing to the fact there are numerous mountain biking trails through the hills and valleys adjacent to the township.

1. In years gone by mining and forestry were significant industries in the Derby area and indeed in the entire North-East of Tasmania. However, in recent years neither mining nor forestry employ as many people as they once did.

1. On Monday 29 February 2016 "The Examiner" newspaper published four articles about forestry and tourism in the Derby area, under the heading "Monday Exposé" on pages six and seven of that day's edition. One of those articles was headed "Clear felling seen as threat to region" and commenced as follows "The battle between working forests and tourism ideals are [sic] heating up in the North-East as Forestry Tasmania prepares to harvest a coupe next to the much laundered [sic] Blue Derby mountain bike trails. Reporter Eddie Hogarth examines the issue". The reported tension between tourism and forestry in the region was central to all the articles.

1. Derby lies within the Dorset municipality. The appellant, Mr Greg Howard, is the mayor of the municipality. He is quoted in two of the four stories published in "The Examiner". The articles noted that in one area which was to be logged that the clear felling was to occur within only 10 metres of one the mountain bike trails. In an article headed "Logging won't affect natural assets" the appellant is quoted as follows: "Counsellor Howard said forestry operations in this case took priority and that he had felt clear felling was the best method of harvest for this coupe "Forestry Tasmania have planned to log the coupe well before we planned the trail that goes alongside it" he said, "We the council don't have any issue what so ever. We support the decision to clear fell the coupe". The article continues "Forestry Tasmania said it supported the development of mountain bike trails in the North East" and had "worked cooperatively with key stakeholders..." Counsellor Howard echoed Forestry Tasmanian [sic] claims and said that the government business enterprise had been accommodated in making allowances for a trail to run beside the Mutual Valley forest coupe after trails intended for the Blue Tier were unable to be accessed. "To put more trails into Derby than the original plan, we had to find more ground and that meant expanding the trails that add onto production harvest areas he [the appellant] said."

1. In another of the articles published that day under the title "Mountain bike trails behind revival", the appellant is again quoted: "However, Dorset Mayor Greg Howard said he was wasn't convinced those riding the trails would be deterred by logging in the area. 'When bikes are costing you $5,000 to $10,000 there are not too many greenies that are on the dole that can afford one of them' Counsellor Howard said..."

1. In relation to information available to interested parties about forestry operations in the area Counsellor Howard is quoted as saying that he was pleased with the amount of consultation between groups, "I am perfectly happy with the amount of consultation that has happened with Forestry Tasmania (FT)" he said. "It's just that fringe group sooking about everything the way they normally do".

1. Mr Peter Coxhead, a resident of Derby, was unhappy with the above and made a complaint to the Local Government Code of Conduct Panel about the matter on 21 July 2016. His complaint was on several fronts. Firstly, he alleged the comments referred to above contravened the model code of conduct for councillors. He also asserted that those comments were "repeated in TV and radio interviews". Secondly, he complained that he sent an email to the council asking for an apology from and censure of Mayor Howard. While the council acknowledged receipt of that, he complained that he received no further response from the council nor any response at all from the appellant to that request. Thirdly, he complained that the appellant had never contacted him in relation to the issues regarding logging in the area before or making after the statements in question.

1. Amongst other things he asserted in his written complaint that "the general public are also offended by his comments". He further noted he was the facilitator of a group known as "Save Mutual Valley" and he was known in the community in that role. He went on to say that "Mayor Howard's comments made myself (and others) feel disrespected and offended. We have been concerned for over [sic] our safety and the safety of our properties. The comments by the mayor were undignified, disrespectful, unfair and deeply offensive".

1. The pro-forma document that Mr Coxhead completed by way of complaint included a table where he was asked to note the provisions of the code of conduct he believed Mr Howard had breached. He referred there to the "Model Code of Conduct Part 1- Decision Making - 23, Part II- Conflict of Interest, clauses 1, 3, 5, 6A and 6B, Part VII- Relations with Community, Counsellors and Employees, clauses 1a and 1b and Part VIII Representation clauses 1, 4, 5, 6 and 7".

1. Mr Coxhead's complaint was forwarded in accordance with the Local Government Act 1993 ("the Act") to the general manager of the Dorset council. Again, in accordance with the Act, the general manager then forwarded it to the Local Government Code of Conduct Panel constituted under the Act.

1. An initial assessment of the complaint was made by the Panel under the Act, s 28Y. Following that assessment a decision was made to investigate the matter, which duly followed. Following that (the details of which are discussed below) the Panel determined that the appellant had breached the code (albeit an earlier iteration of it) in one regard in relation to the above articles. It found that Councillor Howard had breached Principle VIII of the then operative code of conduct of the councillors. A number of other alleged breaches of it were found to be without a proper basis and were dismissed.

1. Principal VIII of the operative code provides as follows:

"Councillors are to promote equality by not discriminating unlawfully against any person and by treating people with respect, regardless of their race, age, religion, gender, sexual orientation, political belief or disability.

Members of the public should be treated with dignity and respect whatever the nature of their concerns or views may be."

1. With regard to the comments quoted in "The Examiner", the Panel said in its written determination that "The Panel considers, on objective standards, that the comments published in the newspaper and not denied by Mayor Howard are insensitive and disrespectful towards some members of the public sufficient to amount to Mayor Howard showing a lack of respect". It went on to find that "While the Panel recognises that Mayor Howards comments do not refer to any particular person or group, comments such as the phrases "there's not many greenies that are on the dole that can afford one of them" or "it's just that fringe group sooking about everything the way they normally do" are not in accordance with principles treating people in the community with respect. In closing the Panel said "The Panel reminds Mayor Howard that, particularly as he is the spokesperson for the council, he should demonstrate restraint in making comments that can be construed offensive or hurtful to any member or group in the community."

1. The appellant, unhappy with that decision, appealed that to the Administrative Appeals Division of the Court pursuant to the Local Government Act 1993 s 28ZP.

1. Section 28ZP of the Local Government Act 1993 provides as follows:

If a person is aggrieved by the determination of a code of conduct complaint by the Code of Conduct Panel on the ground that the Panel failed to comply with the rules of natural justice -

(a) the person may apply to the Magistrates Court (Administrative Appeals Division) for a review of that determination on that ground; and

(b) that determination is a reviewable decision for the purposes of the Magistrates Court (Administrative Appeals Division) Act 2001.

1. Normally in the Administrative Appeals Division of the Court, once an appeal is lodged, a magistrate conducts a merits review whereby the Court stands in the shoes of the original decision maker and conducts a re-hearing de novo into the matter appealed from. That is not the case here.

1. However, in this case the parties here have agreed that the Panel's determination should be set aside and they have also agreed that the matter should be reconsidered by the Court de novo rather than that I remit the matter back to the panel for re-hearing: Magistrates Court (Administrative Appeals Division) Act 2001, s 26(3)(c).

1. I therefore need to consider the appealed decision afresh. The re-hearing was conducted on the matter which essentially proceeded with submissions "on the papers".

1. I further note Mr Coxhead was afforded the opportunity to be heard on the appeal but did not appear.

1. Normally, bearing in mind this is a re-hearing on the merits, it would not be relevant to canvass the manner in which the Panel conducted its investigation and reached its determination. However, in this case it is relevant to do so to properly understand the history of the matter and the arguments put by the parties before me.

1. The relevant conduct complained of by Mr Coxhead being the comments quoted above by the appellant in "The Examiner" were published on 29 February 2016. Mr Coxhead filed his complaint with the general manager of the Dorset Council on 21 July 2016. Subsequently, after the initial assessment of the complaint by the panel, the complaint was sent to the applicant and he was asked to respond to it.

1. Essentially his response was to submit, correctly, that the particular code referred to in Mr Coxhead's pro-forma document ("the new code") was not in fact in operation as at the date of the conduct in question on 29 February 2016. That code did not come into operation until May 2016. At the date of the conduct alleged, an earlier code ("the old code") which had been adopted by the Dorset council in November 2010 was in operation. Based on that the appellant submitted to the Panel that it would be "contrary to natural justice" for them to proceed to deal with the complaint.

1. In response to that submission the Panel wrote to Mr Coxhead. Essentially, that correspondence included information whereby the provisions of the new code (which had erroneously been relied on by Mr Coxhead in his formal complaint document) where aligned or cross-referenced with the provisions of the old code. They requested that Mr Coxhead effectively particularise his complaints by reference to the provisions of the old code, plainly in the hope that the above information would aid him in doing so. The Panel's executive officer wrote to Mr Coxhead in that regard on 20 September 2016. The applicant was sent a copy of that at the time.

1. On 27 September 2016, Mr Coxhead responded to the Panel's executive officers above letter and outlined that he believed that the reported comments made breached Principles I, II, V, VI and IX of the old code. Relevantly to this appeal, in reference to the articles quoted above, Mr Coxhead noted that the comments "have upset many residents, myself included". He went on "The tourism and MTB (mountain bike) community has read those comments and it relayed a nasty and contentious opinion. His comments also provoked negativity and a lack of duty of care for the overall community. This in turn gives the Dorset council a bad reputation on a state scale and a national level. " He went on later to say "I found Mayor Howards remarks to be insulting and defamatory towards anyone who may consider themselves a greenie. His remarks were negative and destructive feelings in the community of Dorset. There are hundreds of people in Dorset who support the greens and it was a slap in the face for those people and those who have been supporting the Mutual Valley campaign. His comments incited hatred and have no real reputable facts to back them up ... Many Dorset residents were horrified and disgusted by Mayor Howard's comments ... the type of comments made by Mayor Howard are a form of bullying design to create an us and them mentality in the community."

1. It is important to note that Mr Coxhead did not, when referred to the provisions of the old code, specifically refer to Principal VIII (the only provision the Panel ultimately found that the appellant had breached). Nevertheless, the fact is that his complaint concerning the appellant's conduct as a councillor expressly, from first to last, related to the above comments. In substance the nature of his concerns about those comments were consistent, both in his original complaint document and in his later correspondence to the Panel of 27 September 2016, as detailed above.

1. Once the tribunal received that response the Panel wrote to the appellant enclosing a copy of Mr Coxhead's correspondence and seeking his response to that. In response to that the appellant essentially submitted that the particularised complaint of 29 September 2016 was in fact a new complaint and one made outside the period of six months which is limited for the bringing of complaints breaches of the code (whether the code was the old or the new). He therefore submitted the Panel should not deal with the complaint.

1. The Panel reached the view they would not hold a formal hearing, they having afforded the parties procedural fairness by virtue of all correspondence which passed between the Panel and the parties which meant that each party was at all times given an opportunity to put material to them.

1. In its determination the Panel dismissed all of the complaints made by Mr Coxhead under the old code, i.e., breaches of the old code Principles 1, II, V, VI, and IX. However, of its own motion, it found that Mr Howard had breached Principle VIII as set out above.

1. On this appeal the appellant essentially submitted entirely as he had before the Panel - i.e., that the complaint before me to be considered afresh was the document submitted by Mr Coxhead on 21 July 2016.

1. In that regard he firstly submitted that the complaint of that date referred to the incorrect code and that it would therefore not be in accordance with natural justice to consider the complaint.

1. Secondly, he submitted in the alternative that if it be that the complaint before me was, effectively, the document authored by Mr Coxhead of 27 September (being Mr Coxhead's response to the Panel's invitation to "re-particularise" his complaint under the provisions of the old code) then, as that complaint was made outside the six month period provided for the making of complaints to the Panel (see: the Act, s 28V(3)(f)), I had no jurisdiction to deal with the matter.

1. Thirdly, he maintained that his comments did not breach the old code as the Panel found in any event.

1. Ms Hodgson, for the Panel, submitted that the appellant's first two submissions were without merit. She submitted that for the purposes of the act "the complaint" was the document submitted by Mr Coxhead on 21 July 2016. She submitted that on 13 April 2016 the Act was amended as to both the substance of the code, and as to procedural matters in dealing with complaints made concerning alleged breaches of it. She correctly submitted that, whilst the new code was the operative one after that date, complaints made under the old code were nevertheless, after 13 April 2016, to be determined in accordance with the amended legislative scheme (see: the Act, Div 3A).

1. She submitted that the "re-particularised" (my word) complaint of 27 September 2016 was not an amendment to the complaint, but rather a "clarification" (counsel's word) of it which the Act permits the Panel to seek from a complainant: the Act, s 28ZE(1)(b) and (4). She noted that the Panel did not ask Mr Coxhead to amend his complaint. She also submitted that it is also significant in all this that, in its letter to Mr Coxhead where the provisions of the new and old codes were "aligned" (again counsel's word) specifically noted that "matters" not contained in the original complaint would be ignored by the Panel.

1. I reject the submissions that the document of 27 September was not an amendment of the original complaint of 21 July 2016. To amend a document one "must change, modify, make right, correct or rectify it" (Oxford English Dictionary). Plainly Mr Coxhead did that. He has rectified his original complaint about the appellant's behaviour to "plead" the correct code which was operative at the time of the alleged breaches. The Act permits a complainant to amend a complaint provided the Panel consents to that: the Act, s 28X(2)). In sending the letter of 27 September 2016 to the appellant seeking his comments as to it, and then ruling on it, the Panel has plainly consented to that amendment. In this regard, I note the Act s 28ZE(1)(a) makes it plain that the panel is to act with "as little formality and as expeditiously as is reasonably practicable in the particular circumstances" in investigating complaints before it.

1. That being the case the situation is that I am required to determine a complaint made within time on 21 July 2016, but which was subsequently amended, which amendment was necessarily consented to by the Panel. There could be no basis upon which such consent could be refused by the Panel or the Court acting in its place. The nature and substance of the conduct complained about was clear and unchanged. There was no prejudice to the appellant in amending the complaint in the sense that it did no more than plead breaches of the old, then operative, code rather than mistakenly citing the new code.

1. The Local Government (Code of Conduct) Amendment Act 2015 required councils to adopt new codes of conduct, and included procedural provisions about the making of complaints and the investigation, hearing and determination of them. As such it was an enactment which both created and modified substantive rights as well as one which included procedural matters. Mellish LJ said in Republic of Costa Rica v Erlanger [1876] 3Ch D 62 at 69 "No suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation the procedure is changed, provided, of course, no injustice is done." (Approved of by Dixon, CJ in Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 see also: Acts Interpretation Act 1931, s 16(1)(c)). Bearing in mind my view that the amendment was entirely properly dealt with in accordance with the Act and with no injustice or even prejudice to the appellant, his first and second submissions are rejected.

1. Further, in my view, the highly technical approach suggested by the appellant as to how these complaints should be made is to be rejected. The legislation here is remedial in nature. It is concerned with ensuring that councillors conduct themselves both lawfully and in accordance with the standards of honesty, probity and propriety set out in the code. The Act gives council employees and members of the public the right to complain about alleged breaches of those standards. It permits the Panel to sanction councillors who breach those standards. Such legislation should be construed beneficially and not narrowly (see: Qantas Airways Ltd v Christie (1998) 193 CLR 280 at 332 per Kirby J and Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 359 per Mason CJ and Gaudron J).

1. In my view, the approach to be taken to the making of complaints under this legislation is on all fours with the situation discussed in Commissioner of Police v Reid [2000] TASSC 181, a case involving the Anti - Discrimination Act 1998. In discussing the proper approach to the drafting of complaints to be considered by the Anti - Discrimination Commissioner under that legislation Cox, CJ said at [8]:

"The Commissioner's jurisdiction to commence an investigation comes initially from a complaint of discrimination and prohibited conduct. That complaint does not require the precision of a formal pleading such as an indictment or civil pleading."

1. As noted above Mr Coxhead's complaint about the appellant's conduct plainly, essentially, always related to what was published in "The Examiner" as set out above. The nature of his concerns about the reported comments in a general, but nevertheless clearly identifiable, sense, remained the same throughout the history of the matter. The Act, s 28ZB(1)(b), makes it clear that, whatever is "pleaded" in the written complaint before the Panel, it can only dismiss a complaint without investigation and determination if "the complaint or ... does not substantially relate to a contravention of the code of conduct of the relevant council". The provision plainly relates to the Panel's assessment of an alleged breach of the code of conduct in force at the time of the alleged breach and is not, in my view, an assessment limited only to the precise particulars or characterisation of the alleged breach nominated by a complainant.

1. The Panel's jurisdiction was properly invoked by Mr Coxhead's initial complaint. The manner in which it was subsequently amended by the nomination of the correct code in no way breached the legislation or impacted unfairly on the appellant.

1. As such the appellant's first two submissions must fail.

Did the appellant breach the code by making the comments complained of?

1. The appellant's position is that he did not breach the old code when he made the remarks reported in the newspaper. He asserted that they were generalised comments that did not single out or relate to any identifiable person or group.

1. The respondent's counsel made no submissions as to whether the comments in fact breached the old code. Her position in the matter generally was to address the procedural and technical elements of the appellant's appeal insofar as they related to his first and second submissions discussed above.

1. The relevant passage of the code requires of councillors that "members of the public should be treated with dignity and respect, whatever the nature of their concerns or views may be".

1. The Oxford English Dictionary relevantly defines the term dignity as meaning "the state or quality of being worthy of honour or respect, a composed or serious manner or style". It defines respect as "a feeling of deep admiration for someone elicited by their achievements...due regard for the feelings or rights of others...to agree to recognise or abide by". The Macquarie Dictionary relevantly defines dignity as "nobility of manner or style, stateliness" and respect as "esteem or deferential regard felt or shown...to hold in esteem or honour...to treat with consideration; refrain from interfering with".

1. If both those terms were taken at their highest the code would significantly limit the manner in which councillors interact with other councillors, council staff, electors and any other member of the public about mundane, insignificant, non-contentious, procedural or administrative matters, but also in their interactions with each other and with those who may have different views to them about highly contentious matters of real public importance. Again, taken literally and at its highest the code would require councillors to treat everybody "whatever the nature of their concerns or views (sic) be" within that enormous range of matters with honour, complete seriousness, deference and esteem, even admiration.

1. Of course the concerns, views or opinions of the public and councillors will necessarily span an almost limitless range. Views, opinions and concerns may be held about anything from significant issues to interest in or even fixations on the most trivial, inconsequential, minor, unimportant issue and even matters with no legitimacy at all. Views, concerns, interests and opinions on that range of matters will themselves range from genuine, reasonable and considered ones to disingenuous, ill-considered, extreme, ill-liberal, unreasonable and illogical views or concerns about any matter, big or small, legitimate or not. Obviously Councils deal with a huge range of matters. Some of them are of real importance to many in their municipality and evoke strong opinions and much debate and contention.

1. Taken at its highest the admonition in the code is highly restrictive of the ability of councillors to express views and argue about matters of public concern or debate. There is ample authority that the ability of all, whether they be the elected or electors, to freely argue in favour of them and to argue freely against those holding contrary positions is a right which is central to a properly working democracy and should be protected. Of course that right is not unlimited. In my view the code, at least insofar as it relates to "political matters" should not be interpreted so as to require councillors to conduct themselves

- at all times about all matters - as might be suggested by reference to the words used in the code considered at their highest in isolation.

1. The High Court has long recognised that the provisions and structure of the Commonwealth Constitution have created an implied right to freedom of communication about political matters. That freedom is not unlimited. The limited scope of that implied freedom was variously described as being one related to public affairs, "political discussion" or as a "freedom ... to discuss governments and political matters" and "freedom of political discourse": Australian Capital Television P/L & NSW v The Commonwealth [1992] HCA 45; (1992) 177 CLR 106; Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 and Lange v ABC [1997] HCA 25; (1997) 189 CLR 520).

1. In Australian Capital Television P/L & NSW v The Commonwealth, Deane and Toohey, JJ specifically held that the implied freedom extended to all political matters including matters relating to all levels of government. Their Honours specifically noted that the Commonwealth has three levels of government - a position specifically included in this State's own constitution since 1997: Constitution Act 1934, Pt IVA. The plurality in Theophanous v Herald & Weekly Times Ltd expressed the freedom to be one enshrining the freedom to discuss "government and political matters". They held that the freedom was not limited to publication of matters concerning members of parliament and their performance and suitability for office. They held that the freedom was not limited to communications between electors and the elected and that it extends to all who participate in "political discussion" broadly defined across all levels of government. While the freedom was accepted as not being unlimited, it was held to be one the existence of which meant that legislatures cannot restrict or inhibit that freedom unreasonably. The tension at least some in the community see between forestry operations near Derby and the tourism potential of its mountain bike tracks as raised in the newspaper articles in question is plainly a matter of genuine public interest and concern. It was a "political matter". The implied freedom of expression applies to it.

1. It could be argued that insofar as a code of conduct for councillors created by the Act seeks to impinge on freedom of expression by councillors on political matters it is invalid. Such a position would not rob the entire code, or even the relevant part of it, of operation as its strictures would still apply to the behaviour and words of councillors in non-political matters. However, no such arguments were put to me so I express no view on that.

1. In my view the code of conduct under discussion in this matter must be seen against the above background and its words should be read down so as to not infringe on that freedom unduly. At base the question raised by this appeal is whether, in the light of the appellant's fundamental right of freedom of political expression, is an interpretation of the Code which renders the appellant liable to a sanction for those comments a lawful one? In my view it is not. For the foregoing reason the appellant's comments do not breach the code.

1. It is also to be remembered that the code should not be interpreted in such a way as to give councillors any lesser right as to how they engage in political debates than are enjoyed by non-councillors. The right the Court has recognised is a universal one enjoyed by all, as are the limits on that right.

1. In Coleman v Power [2004] HCA 39; 220 CLR 1, the constitutionality of the Vagrants, Gaming and Other Offences Act 1931 (Qld), s 7(1)(d), fell for the determination of the Court. In that matter the appellant had been conducting a one man campaign against alleged corruption in the Queensland police force. He was distributing pamphlets in a public place naming two officers he claimed were corrupt. One of the named officers approached him as he did so. As this happened an altercation with police ensued during which Mr Coleman said of one of the approaching officers "This is Constable Brendan Power, a corrupt police officer". Amongst other offences Mr Coleman charged with using insulting words in a public place by saying that. Mr Coleman submitted that the provision was unconstitutional because it tended to inhibit him freely discussing police corruption, an area of real public concern.

1. The majority held that the provision was valid and, whilst it had the capacity to infringe on the implied right to freedom of communication, that by using principles of statutory interpretation the proper scope of the criminal conduct the provision was intended to address and protect the public from could be divined. The majority took two distinct approaches to that task. On one hand Kirby J set aside the conviction, noting that police officers were expected to be "thick skinned and broad shouldered in the performance of their duties". On the other hand Gleeson CJ, Callinan and Heydon JJ held that the term "insulting" should be given its ordinary meaning and said "the language in question must be not merely derogatory of the person to whom it is addressed, it must be of such a nature that the use of the language, in the place where it was spoken, to a person of that kind, is contrary to contemporary standards of public good order, and goes beyond what, by those standards, is simply an exercise of freedom to express views on controversial issues". By those two somewhat different approaches the Court found that the impugned provision was not unconstitutional.

1. The approaches adopted in Coleman are on all fours with the approach taken by Courts when considering disorderly conduct, offensive conduct or offensive language cases under legislation such as the Police Offences Act 1935. The sensibilities of those who complain or of the public generally are required to be more than delicate. Such behaviour, conduct or language must be offensive to a reasonable, tolerant, understanding person of some robustness (see: Ball v McIntyre (1966) 9 FLR 237, a case concerning a protest against the war in Vietnam).

1. Proceeding on the basis of the validity of the code in respect of comments made on political matters, to determine whether the appellant's words as published in "The Examiner" breached it a similar approach to the above should be adopted. The code should not be interpreted so as to pander to the feelings of those who are hyper-sensitive to any sleight, real or perceived, against them or their views, concerns or opinions. It should not be interpreted in a way that unreasonably inhibits frank, open, even passionate debate or - within reasonable limits - the use of legitimate debating techniques which might include the use of humour, hyperbole, sarcasm and invective. Matters of political debate often involve vehemently held opinions and strongly opposed positions being debated by electors and by the elected. Feelings can run high and sensitivities are heightened. Such is the nature of politics. Experience shows local government is certainly no different to any other level of government in that regard.

1. When the right to express oneself in public political debate is considered the words of Kerr, J in Ball are apposite: "Different minds may well come to different conclusions as to the reaction of the reasonable man (or woman) in situations involving attitudes and beliefs and values in the community, but for my part I believe that a so-called reasonable man (or woman) is reasonably tolerant and understanding, and reasonably contemporary in his (or her) reactions".

1. Only by applying a robust, objective test is the proper scope of the relevant part of the code to be divined. To do otherwise would invalidly allow the code to become a weapon in the hands of those who might seek to unreasonably stymie opposition to their political views by claiming that the comments or arguments directed at them or their views amount to a councillor not treating them with the utmost respect and dignity. Again, to use the language of Kerr, J in Ball comments made during such debates may be "foolish or misguided or even against the canons of good taste" but nevertheless not amount to objectively failing to treat ones political opponents with dignity and respect. The code should not be interpreted so as to sanitize debates by reference to some unreasonably lofty standard of decorum, sophistication or good taste.

1. The appellant's comments were very generalised ones. They named no identifiable person. His comments were perhaps clumsy, unsophisticated and inelegant ones, nor were they probably very persuasive. No doubt many reasonable people would disagree with his views and his manner of expressing them. The appellant, like anyone else involved in political debates, is liable to criticism about his comments in the political realm. There may be electoral consequences for him as a result of his comments. That is a matter for political debate and for electors. However, at base his comments represent a position about forestry and mountain bike tourism in his municipality that he is entitled to hold and express. He is entitled to disagree with and even criticize, within limits, those who oppose those views.

1. An assertion by a member of the public involved in such a debate that they felt offended, belittled, insulted, distressed or angered by a political opponent's comments - who happens to be a councillor - does not in any way necessarily amount to that councillor objectively failing to treating a political opponent with respect or dignity. Those responses may very well be genuinely felt by Mr Coxhead and others who are like-minded. However, the debate and the comments made during it should be viewed dispassionately and always recognising that people may well have strongly held, entrenched and diametrically opposed views on the issue. As the High Court has recognised healthy working democracies are characterised by people engaging in those debates.

1. In the context of political issues, unless the expression of those views by a councillor is done in a way which manifestly offends the test stated above the code is not breached. In my view, the appellant's comments did not do so.

1. I will hear the parties as to any consequential orders if requested by either of them to do so.