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Sexual harassment – is your Councillor Code of Conduct up to the task?

Anthony Massaro, Ben Tallboys

The ongoing process arising from the allegations against Melbourne Lord Mayor Robert Doyle has highlighted the fact that many Councillor Codes of Conduct do not deal directly with sexual harassment. This gap can make it difficult for a councillor to make a complaint regarding another councillor, and equally for a Council to deal with sexual harassment allegations when they arise.

Councillor Codes of Conduct almost universally rely on the councillor conduct principles set out in the Local Government Act 1989.  While the councillor conduct principles require councillors to “treat all persons with respect” and to “act lawfully” there is no reference to sexual harassment in the councillor conduct principles, and as a result those words tend not to appear in Councillor Codes of Conduct.

From a legal perspective, it is fairly clear that sexual harassment would amount to a failure to treat a person with respect.  Sexual harassment between councillors is also unlawful: it is well established that sexual harassment is a form of discrimination, and the Equal Opportunity Act 2010 specifically provides that a councillor must not, in the performance of public functions, discriminate against another councillor or a member of a council committee.

However, at some Councils where decisions can be complicated by the personalities involved, the absence of a specific reference to sexual harassment may lead to an argument that sexual harassment is not covered by the Code of Conduct, so it cannot be dealt with as a councillor conduct issue.  On the other hand, if a Code of Conduct were to prohibit sexual harassment, that would remove any room for argument, and sexual harassment claims between councillors could be addressed through the internal resolution procedure set out in the Code of Conduct.

The other benefit of adopting this approach is that the formal prohibition may act as a deterrent.  To quote from the Victorian Equal Opportunity & Human Rights Commission website:

“Having a strong and unambiguous equal opportunity policy is a powerful tool for preventing discrimination and sexual harassment in the workplace.”

By clearly dealing with sexual harassment in the Code of Conduct, a Council can reduce the risk that councillors and staff will be exposed to inappropriate behaviour, and that councillors will face legal action personally.

What should Councils do? 

All Councils should review their Codes of Conduct and identify whether they adequately prohibit (and define) sexual harassment, and whether the complaints mechanisms are capable of managing  sexual harassment complaints.  If sexual harassment is not adequately covered, Councils should go through a process to amend the Code of Conduct.  While the Act only requires Codes of Conduct to be reviewed once each electoral cycle, there is no prohibition on a Council deciding of its own volition to review and update its Code of Conduct.  This appears to be the approach being recommended to Melbourne City Council by its Chief Executive Officer.

Councils should also offer their councillors training on discrimination and sexual harassment, in the same way that training is provided on a regular basis to staff.  This ensures that Councillors are aware of their obligations and potential liability.

Finally, Councils should ensure that their workplace complaints procedures or sexual harassment policies have a complaints process which is capable of managing a complaint by an employee against a councillor.

Russell Kennedy has extensive expertise in drafting and reviewing Councillor Codes of Conduct, and providing training on discrimination and sexual harassment.  Please contact Anthony Massaro or Ben Tallboys on 9609 1631 if you would like advice on proposed changes to a Code of Conduct, or to discuss training options.

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