Dorset Mayor takes fight to Supreme Court, claims free speech impinged

Local Government Minister Nic Street suspended Mr Howard and nine other Dorset councillors last year, after a Code of Conduct panel found that his public comments breached local government codes of conduct, and that there were allegations of "systematic and widespread statutory non-compliance and failings of good governance" from August 2020.

Mr Howard has appealed that Code of Conduct panel decision to the Supreme Court in Hobart.

In the hearing on Tuesday, Mr Howard's barrister, Tom Cox, argued that his client's constitutional right of free political communication had been infringed by the panel decision, which sanctioned Mr Howard for a series of letters published in a local newspaper in 2020 in which he criticised former councillor Lawrence Archer.

He said interpretations of two sections of the Local Government Act created a burden on the implied right of freedom of political communication in the Australian constitution, and had the effect of attempting to sanction appropriate behaviour of a councillor.

"If properly construed, you find the purpose [of the two sections] doesn't extend to civil discourse and it shouldn't be read that way," Mr Cox said.

He said the relevant sections of the act were meant to counter inappropriate behaviour by councillors, such conflicts of interest, inappropriate use of council resources or information.

He compared using these parts of the act to sanction normal "civil discourse" to "using a sledgehammer to crack a nut".

Counsel for the government, Nicole Winton, argued that the implied right of free political communication in the constitution provided a "systemic", rather than personal right.

"They argue that is a personal right, mistaking freedom under our constitution to a freedom akin to the US constitution," she said.

She also argued that greater penalties tended to discourage free political communication, and noted that the punishments in the case of Mr Howard were minor.

The fallout between Mr Howard and Mr Archer began when Mr Archer wrote to the North Eastern Advertiser newspaper querying council expenditure.

Mr Howard responded with a letter citing the "nonsensical ramblings of regular correspondents" and referring to a former Dorset councillor.

Mr Archer further questioned council expenditure in a second letter on September 9 2020.

Mr Howard made a final response in the same newspaper some weeks later, writing: "Is Lawrence Archer financially illiterate or is he just deliberately and vindictively misrepresenting the truth in an attempt to tarnish the image of council".

He also wrote: "Archer's voting record when on Council where he voted against many of the very positive initiatives that Council has implemented certainly begs the question whether he was on the Council for the right reasons."

Chief Justice Alan Blow reserved his decision for a later date.