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City council “gag order” legal: Law Society

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An Adelaide City Council move to restrict councillors from speaking to journalists is legal, but should only be used “sparingly”, the Law Society of SA says.

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The majority of city councillors support the proposal, which would ban councillors from speaking to the media about motions they intend to put forward before the publication of council agendas.

If proposal is voted through at next Tuesday’s council meeting, it would form part of the council’s standing orders – a set of rules that govern council members’ behaviour.

But the council is still seeking legal advice to determine whether the ban is compliant with the Local Government Act.

Law Society of SA president Amy Nikolovski said the proposal was “not unlawful on the face of it” as the Local Government Act stipulates that councillors must comply with all council policies.

“The code of conduct for council members, which under the Local Government Act must be observed by South Australian councillors, does not expressly restrict council members from communicating with the media,” she said.

“Under the code of conduct, council members are permitted to provide personal comments to the media on the condition that they indicate that they are offering their private views, and are not speaking on behalf of the council.

“However, council members must also comply with all council polices, and this may include media policies that prescribe limits on speaking publicly on certain matters.”

Nikolovski said all councils should ensure that policies that restrict elected members from speaking to the media are “not exercised unreasonably”.

She said if the city council’s proposal is voted through, it should only be used “sparingly and for very good reason”.

“Freedom of speech of elected representatives should be protected as much as possible,” she said.

“Any restrictions on free speech that may be deemed excessive could be called into question by the courts.”

A spokesperson for the Local Government Association of SA said it had not considered or been asked to seek legal advice on the proposed changes to the city council’s standing orders.

“However, I can confirm that the Local Government Act 1999 does not specifically address when council members can speak to the media,” the spokesperson said.

Flinders University political scientist Haydon Manning yesterday described the proposal as “unprecedented” and akin to a “gag order”.

“I’ve never heard of such an effort to really put a gag on debate and conversation,” he said.

The council’s CEO Mark Goldstone said the administration would seek legal advice on the proposal ahead of next week’s council meeting.

Councillors aligned with the Team Adelaide majority faction – including Lord Mayor Sandy Verschoor, Deputy Lord Mayor Houssam Abiad, Alexander Hyde, Arman Abrahimzadeh, Mary Couros, Franz Knoll and Simon Hou – and independent councillor Jessy Khera are in favour of the restriction.

They argue the proposal would improve the transparency and accuracy of information being relayed to the public, and would allow councillors to have more time to digest information before they are contacted by the media.

However those opposing the proposal – including councillors Anne Moran, Phil Martin, Robert Simms and Helen Donovan – say the restriction could impinge on councillors’ freedom of speech.

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