Free speech curb not needed for council elections

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Accusations of corruption and misconduct — of varying levels of seriousness and accuracy — form part of the fabric of local council elections.

Facing a high volume of complaints damaging to candidates’ reputations that turn out to be baseless, Queensland’s Crime and Corruption Commission last year recommended a curb on free speech, proposing the state government make it an offence for any person to publicise allegations of corrupt conduct against another candidate during an election without first notifying the CCC and allowing at least three months to determine whether the allegations have merit.

This heavy-handed approach is unnecessary, believes Victoria’s Local Government Investigations and Compliance Inspectorate.

The agency, the only one dedicated to local government integrity in Australia, instead resolves initial inquiries as quickly as possible. This approach resulted in 96% of complaints during last year’s council elections being receipted, assessed and having action taken within two working days.

Most matters were able to be resolved within this brief timeframe as having no basis, or being genuine mistakes or issues that did not present a high systemic risk.

“This performance effectively eliminated the ability for the complaints process to be used as a campaign tactic for those seeking to do so,” argues Chief Municipal Inspector David Wolf in a report released this week on the 2016 council elections.

The speed with which the inspectorate processed complaints demonstrates an alternative to the CCC’s suggestion for preventing media outlets discussing allegations for up to three months.

“While legislation is an important and necessary tool in maintaining the integrity of elections, a proposed ban on media reporting should only be considered as a last resort due to the impact on transparency and the cost of greater regulation on the public,” argues the report.

“The Inspectorate has shown through its work that having a dedicated integrity agency for this sector, effective education, appropriate resources, risk identification and early resolution is a preferred model.”

Misunderstandings abound

In the 2016 election period alone, the office looked at more than 2000 enquiries and received 409 formal complaints for matters ranging from minor campaign material offences to serious corruption allegations for activities intending to undermine the democratic system. 310 of the formal complaints were found not to have constituted an offence, 39 warnings were issued and 21 cases transferred to the investigations team.

Many candidates have mistaken ideas about what constitutes an offence, with common complaints centring on candidates not living in the local government area (they don’t have to) and making claims about achievements or affiliations others disagree with.

“As a result of receiving a large number of these types of complaints, and through its investigative work, the Inspectorate identified a possible gap between the ‘expectations’ that are set by the legislation, and the ‘reality’ of how it is interpreted by the legal system,” says the report.

Although the High Court has a very narrow interpretation of what constitutes misleading voters, concentrating on advice that would lead voters to mark their ballot in an invalid way, “in most cases complainants believe any statement that is not totally accurate, constitutes an offence.”

The agency’s work with media before the election period has helped reduce the number of investigations it has had to carry out on outlets. While the last election saw five media outlets investigated for breaching electoral laws, this fell to only one in 2016. Maintaining ongoing relationships with media means outlets, and under-resourced local media in particular, are more likely to pick up the phone and speak to the inspectorate when they are unsure of their obligations.

Quickly dispatching complaints also makes it easier for media to know what is worth reporting, since it can be hard for newspapers to tell whether there is substance to allegations.

Similarly to other integrity agencies, the Local Government Investigations and Compliance Inspectorate provides education, delivers programs to prevent corruption and the misuse of public resources, and fosters positive behaviours and attitudes within local government. It was created in 2009 following revelations of misconduct at Brimbank City Council.

Victoria is the only state to have an agency specifically focused on local government integrity. This specialisation allows it to be more effective, believes agency head David Wolf.