Rights Aotearoa's Submission on the Draft Standard Code of Conduct for Local Government

1. Introduction and Overview

1.1. Rights Aotearoa welcomes the opportunity to provide feedback on the Draft Standard Code of Conduct (the Draft Code) for members of local authorities, local boards, and community boards, developed pursuant to Clause 15, Schedule 7 of the Local Government Act 2002.

1.2. Rights Aotearoa is a leading non-governmental organisation dedicated to the promotion and defence of universal human rights of all kiwis. We have a particular interest in the human rights of transgender, non-binary and intersex New Zealanders. We acknowledge the unique nature of human rights in Aotearoa that derives from Te Tiriti o Waitangi. We also believe that robust ethical frameworks and clear accountability mechanisms are foundational to a healthy, functioning democracy.

1.3. We strongly support the initiative to establish a standardised Code of Conduct. Local government is the tier of democracy closest to the community, and its effectiveness relies fundamentally on public trust. This trust is maintained only when elected members demonstrate the highest standards of integrity, respect, and accountability. The current landscape, characterised by inconsistent codes and variable enforcement mechanisms, has sometimes failed to address conduct that falls below public expectations.

1.4. The Draft Code provides a necessary, comprehensive, and legally sound framework to ensure high standards are consistently applied and robustly enforced across the sector. It appropriately balances the need for accountability with the principles of natural justice and the imperative of robust democratic debate.

1.5. This submission details our support for key aspects of the Draft Code, offers recommendations for its strengthening, and addresses specific concerns raised by other submitters regarding the balance between accountability and freedom of expression.

2. Key Areas of Support

2.1. Commitment to Te Tiriti o Waitangi (Clause 8)

2.1.1. Rights Aotearoa strongly commends the explicit inclusion of Clause 8, which requires members to operate and make decisions in a manner that recognises and respects the significance of Te Tiriti o Waitangi. This is fundamental to good governance and a constitutional requirement in Aotearoa.

2.1.2. The articulation of the principles—Tino Rangatiratanga (self-determination), Partnership, Equity, Active Protection, and Options—provides clear and actionable guidance. These principles are well-established in New Zealand jurisprudence and public policy. We reject assertions that these are "undefined concepts"; rather, they are foundational obligations. Incorporating these principles into the Code ensures that local authorities fulfil their obligations to Māori, leading to more durable and equitable outcomes for the entire community.

2.2. Expectations of Behaviour: Trust and Respect (Clauses 10 and 11)

2.2.1. We endorse the expectations outlined in Clauses 10 (Trust) and 11 (Respect). These clauses form the ethical core of the Draft Code.

2.2.2. The requirements in Clause 10 regarding merit-based decision-making, transparency, accountability, and the diligent management of conflicts of interest are cornerstones of integrity in public office.

2.2.3. Clause 11 addresses the crucial issue of how interactions and debate occur. A functional democracy requires vigorous debate, but the quality of that democracy is diminished when debate devolves into behaviour that undermines the dignity of individuals or discourages participation.

2.2.4. We strongly support the expectation that interactions must be inclusive and allow for "robust discussion and debate focusing on issues rather than personalities." Standards of respect and civility are not merely about politeness; they are essential mechanisms to ensure that diverse voices—including those of minority groups and marginalized communities—can participate in local democracy safely and constructively.

2.3. Independent and Fair Complaints Process (Part 3)

2.3.1. A Code of Conduct is only as effective as its enforcement mechanism. We strongly support the structured, principled approach to handling complaints detailed in Part 3.

2.3.2. Crucially, Clause 19 mandates that the concepts of "natural justice, fairness and reasonableness" will apply in the determination of any complaints.

2.3.3. The requirement that the Investigator be appointed from outside the membership and employees of the local authority (Clause 5 definition) is the most critical feature of the complaints process. This mandatory independence is vital to ensure impartiality, prevent the perception of bias, and maintain public confidence in the integrity of investigations.

2.3.4. We also support the proportionate approach (Clause 19) and the comprehensive preliminary assessment process (Clause 25). This provides necessary safeguards against misuse by allowing for the dismissal of trivial, vexatious, or politically motivated complaints, while encouraging resolution through mediation for non-material issues (Clauses 36-39).

2.4. Clarity on Material Breaches (Clause 23)

2.4.1. We commend the clarity provided in Clause 23, which defines specific harmful behaviours as inherently "material." Explicitly naming bullying, discrimination, harassment (including sexual and racial harassment), and the disclosure of confidential information ensures these serious issues are subject to full investigation. This sends a clear message that such behaviour is unacceptable and fundamentally incompatible with the responsibilities of local government.

3. Freedom of Expression and Democratic Debate (Part 6)

3.1. The right to freedom of expression (Section 14 of the New Zealand Bill of Rights Act 1990 - NZBORA) is a cornerstone of democracy. We commend the inclusion of Part 6, which appropriately balances this right with the responsibilities of public office.

3.2. We acknowledge the submission from the Free Speech Union (FSU), which expresses significant concern that the Draft Code undermines freedom of expression and chills legitimate political speech. While we share the FSU’s commitment to this fundamental right, we fundamentally disagree with their analysis of the Draft Code and their interpretation of how NZBORA applies in the context of elected office.

3.3. Rebuttal to Concerns Regarding Free Speech

3.3.1. The FSU argues that "vague civility standards" (such as "respect" and "not derogatory" in Clause 11) invite subjective enforcement and self-censorship. We disagree. These standards are necessary and appropriate for a professional governance setting, which is distinct from the broader realm of public political discourse. The FSU’s apparent defence of "derogatory" speech under the guise of "robust debate" fails to recognise the real harm such speech causes to individuals and the democratic process itself. Standards of civility do not exist to suppress dissent; they exist to ensure that the democratic forum is accessible to all, and that debate focuses on issues rather than descending into harassment or personal attacks. The Code explicitly protects "robust discussion and debate focusing on issues rather than personalities" (Clause 11), and the independent investigation process mitigates the risk of subjective enforcement.

3.3.2. We emphatically state that nothing in the Draft Code of Conduct undoes NZBORA rights. The FSU submission appears to treat the right to freedom of expression as absolute, criticising the Code for stating that the right should be "used responsibly" (Clause 63). However, Section 14 of NZBORA is not absolute. Section 5 of NZBORA explicitly states that rights may be subject to "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." The Draft Code, established under the Local Government Act 2002, constitutes such a reasonable limit. The objective of the Code—ensuring effective, respectful, and accountable governance—is a pressing objective. The limitations placed on the manner of expression (such as prohibitions on bullying or discriminatory language) are proportionate to this objective; they target harmful conduct, not the expression of unpopular ideas.

3.3.3. We also reject the FSU’s assertion that the Code’s treatment of public criticism of staff (Clause 23) "shields unelected officials from scrutiny and silences councillors." This misrepresents the constitutional relationship between elected members and staff. Elected members have appropriate channels to address performance concerns regarding staff, primarily through the Chief Executive. Publicly criticising staff or questioning their professionalism undermines the political neutrality of the public service, compromises the ability of staff to provide free and frank advice, and breaches the local authority's obligations as an employer. The Code correctly identifies this behaviour as a material breach, reinforcing the distinct roles of governance and operations.

4. Recommendations for Strengthening the Code

While we are broadly supportive of the Draft Code as a significant improvement over the status quo, we offer the following recommendations to further strengthen its implementation, fairness, and accessibility.

4.1. Accessibility of the Complaints Process (Clause 15)

4.1.1. Clause 15 requires complaints to be made in writing and lodged with the Chief Executive. To ensure accountability mechanisms are truly available to everyone, the process must be accessible to all community members, including those with disabilities, language barriers, or limited digital literacy.

4.1.2. Recommendation: That the Code include provisions requiring local authorities to provide alternative, accessible methods for lodging complaints (e.g., oral complaints transcribed by a designated officer) and to offer support or advocacy for those who require assistance to navigate the process.

4.2. Natural Justice and the Right of Review (Clause 47)

4.2.1. Clause 47 states that there is "no right of appeal of any decision made by the investigator." Given the significant impact findings of a material breach can have on an elected member’s reputation, duties, and democratic mandate (including the imposition of sanctions under Clause 43), this provision raises concerns regarding the principles of natural justice affirmed in Clause 19.

4.2.2. While we appreciate the need for efficiency and finality, a complete absence of appeal rights concentrates excessive power in a single investigator. Errors in procedure or fact, however rare, must be correctable.

4.2.3. Recommendation: That consideration be given to introducing a limited right of review. This review should be conducted by a secondary, independent party (such as a panel of experienced investigators) and limited to specific grounds, such as procedural impropriety, failure to observe natural justice, or significant factual error.

4.3. Sanctions and Enforceability (Clause 43)

4.3.1. We support the sanctions listed in Clause 43, which provide a graduated range of responses appropriate for different levels of breaches, including training, mentorship, and restrictions on committee membership. We reject the characterisation by some submitters of mandated training as "ideological re-education." Where a breach has occurred due to a lack of understanding of roles, responsibilities, or the impact of behaviour, education is a constructive remedy.

4.3.2. However, we acknowledge footnote 3, indicating that the wider issue of sanctions, including disqualification from office for the most egregious or repeated misconduct, is under separate consideration by the Department of Internal Affairs (DIA). For the Code to act as a genuine deterrent, the consequences for severe breaches must be significant.

4.3.3. Recommendation: We urge the Department of Internal Affairs to expedite its work on strengthening the sanctions regime available under the Local Government Act, including consideration of financial penalties or disqualification for severe or persistent breaches of the Code.

4.4. Public Reporting and Transparency (Clauses 48-49)

4.4.1. The balance struck between privacy and public accountability in Clauses 48 and 49 is appropriate. We support the provision that non-material breaches are reported in an anonymised form, while material breaches and compliance with sanctions should be publicly reported.

4.4.2. Recommendation: That the Code mandate local authorities publish annual statistics on the number and nature of complaints received, the resolution pathways used (mediation, investigation, etc.), and the outcomes, to ensure overall transparency of the Code's implementation.

5. Conclusion

5.1. The Draft Standard Code of Conduct is a significant and necessary step forward in strengthening local democracy, integrity, and accountability in Aotearoa New Zealand.

5.2. It provides a robust framework that appropriately balances the fundamental right to freedom of expression with the significant responsibilities elected members hold toward their colleagues, staff, and the public they serve. The Code recognises that rights are not absolute and that conduct which harms others or undermines democratic institutions must be addressed within a fair and independent framework.

5.3. Rights Aotearoa strongly supports the adoption of this Draft Code and offers the recommendations above to further strengthen its effectiveness and accessibility.