Code of Conduct Dumps War-Wyn Councillor Fairbrother

Excerpt from Determination Report – Code of Conduct Panel, 15 August 2022

Determinations (from the Code of Conduct Panel report on Councillor Darren Fairbrother)

As per section 28ZI(1)(a) of the Act, the Code of Conduct Panel determines that Cr Darren Fairbrother has breached the Code of Conduct, and therefore the Code of Conduct Panel upholds:
• the complaint made by Mr Healey;
• the complaint made by Crs Hyland and Edwards; and
• the complaint made by Crs Duniam and Courtney.

Reasons for determinations

1. The Panel noted Cr Fairbrother’s repeated contention that the alleged conduct and outcome did not fall within the jurisdiction of the Code, as he was not acting in his capacity as a councillor at the time of the incidents. The Panel rejects that contention. Its task is a simple and confined one and does not rely on section 28U. Section 28V(1) allows a person to make a complaint against a councillor in relation to the contravention by the councillor of the relevant council’s code of conduct. The making of a complaint sets in chain a course of events, in respect of which the Panel’s role is to investigate and determine the complaint. In doing so, the Panel must have regard to the ordinary and natural meaning of the words of the Code.
a. Part 8(7) states that “The personal conduct of a councillor must not reflect, nor have the potential to reflect, adversely on the reputation of the Council”. Plainly, the emphasis is on a councillor’s personal conduct and behaviour.
b. Part 3(1) states that “The actions of a councillor must not bring the Council or the office of councillor into disrepute”.

c. Part 7(1)(b) states that “A councillor must not cause any reasonable person offence or embarrassment”.

2. All three complaints referred to parts 8(7) and 3(1) of the Code. Only the four councillors’ two complaints (that is, not Mr Healey’s complaint) referred to part 7(1)(b).

3. The connection or otherwise between a councillor’s (personal) conduct and their performing of functions and exercising of powers as a councillor: with respect to part 8(7), the emphasis is plainly on personal conduct and behaviour. The Panel considers that the ambit of parts 3(1) and 7(1)(b) may include personal conduct outside of a councillor’s functions or powers, depending on the circumstances. In respect of part 3(1), personal conduct, although disconnected from council, may be so egregious or disreputable that the Council itself, or the councillor’s office, is brought into disrepute. The more disconnected or removed from a council context, the more egregious or disreputable the conduct must be in order to establish a breach of that part. Although largely outside the control of a councillor, the extent to which the actions occurred or came to attention in the public domain is relevant.

4. The Panel makes the same observations with respect to part 7(1)(b). Conduct that is particularly offensive or embarrassing may enliven this part of the Code, notwithstanding that the conduct occurred outside of the Council context. In this regard, the complainants’ evidence as to the notoriety brought to Cr Fairbrother, the council and the community is relevant. It is the offence or embarrassment brought to Cr Fairbrother’s fellow councillors that is relevant and falls within the ambit of part 7(1)(b). This is distinct from the offence or embarrassment that was likely felt by the woman and her child to whom Cr Fairbrother exposed himself. The latter does not fall within part 7(1)(b).

5. The Panel accepts that the Code supports a broad community view that the actions of elected representatives must uphold standards of behaviour generally acceptable to the community, and that the community expects that these standards of behaviour will be upheld in public activities, whether those activities are council directed or not. The Panel therefore proceeded on the basis that the conduct of Cr Fairbrother on 6 January 2021 subsequently did fall within these particular parts of the Code.

6. In the Chairperson’s introduction to the hearings, she stated that the hearings were to investigate whether or not Cr Fairbrother’s conduct on 6 January 2021, and since that time, brought the Council or the office of Councillor into disrepute; and whether Cr Fairbrother’s personal behaviour reflected or had the potential to reflect adversely on Waratah-Wynyard Council. In the investigation into the Hyland/Duniam complaints, it also included investigating whether Cr Fairbrother’s conduct had caused any person offence or embarrassment. All parties were asked to restrict their statements and answers to consideration of only those particulars, and to avoid digression into alternative accounts of what may have happened on 6 January 2021, or the validity of the Magistrate’s decision regarding those events.

The Panel took the view that it was not the Panel’s task to reinvestigate the incident on 6 January 2021; that had been done in the Magistrates Court. The Panel accepted that it was the conduct so described by the Magistrate which could have breached the Code of Conduct, and it was this conduct as described which was to be measured against the provisions of the Code. This was explained to the respondent and the complainants.

7. Evidence was provided to the Panel that a significant number of media reports published before and after the Magistrate’s hearing named Cr Fairbrother as a Councillor from Waratah-Wynyard Council. He was not described as a private individual but rather as a community representative whose conduct would be of particular interest to the community, both in his council area and elsewhere in Tasmania. Cr Fairbrother described these newspaper reports as ‘skewed’, but no evidence was presented to support his statement.

8. Mr Healey alleged that the media descriptions of Cr Fairbrother’s conduct on 6 January 2021 sapped the community’s confidence in Cr Fairbrother’s ability to represent it. This was supported by messages to the Council attached to the complaint, describing Cr Fairbrother’s behaviour as ‘disgraceful’, ‘degrading’ and discreditable’, and included calls for his resignation. A number of condemnatory social media posts were also included in the complaint.

Cr Duniam stated that Cr Fairbrother’s conduct had disgraced their community and the Council. This was evidenced by significant community ‘angst and backlash’ against Cr Fairbrother since the charges were first made public. In addition, Cr Duniam stated that a petition had been brought to the July 2022 Council meeting, requesting the removal of Cr Fairbrother from the Council. The Petition requested that the Councillor convicted of Prohibited Behaviour and placed on the Community Protection Register resign. There were 348 signatories to the petition. She described it as a ‘particularly challenging time’ for Council officers and Councillors.

In her closing statement Cr Duniam noted that at no time had Cr Fairbrother attempted to apologise to the Council, the Council staff, or the Waratah-Wynyard community for bringing the Council into disrepute. In response, Cr Fairbrother said that the General Manager had not relayed to him any concerns raised by staff regarding the matter under investigation. In light of the petition submitted to Council, and the content of the media articles referencing the Council, the Panel determines that Cr Fairbrother should have been aware of the likely impact the publicity surrounding his conduct would have on the staff of the Council. In making that finding, the Panel is conscious of Cr Fairbrother’s presumption of innocence and right to silence. However, following his conviction and the effluxion of the period within which Cr Fairbrother could have lodged an appeal against his conviction, Cr Fairbrother took no action to mitigate the effect that the saga had on Council. He could and should have attempted to distance his actions from the Council.

9. Cr Fairbrother alleged that some of the evidence of community concern submitted in the Hyland/Duniam complaints had been submitted to Council by persons who were in dispute with Cr Fairbrother over unrelated matters. The Panel requested that Cr Fairbrother focus solely on his own personal conduct; on whether or not his personal conduct on 6 January 2021, which gave rise to the conviction in April 2022, breached the Code of Conduct. Cr Fairbrother stated that he considered he had answered those allegations in his submissions of 20 June 2022.

10. The Code is directed to a councillor’s conduct. It is Cr Fairbrother’s conduct in exposing himself that is relevant. The media reports and public notoriety, although relevant, were not conduct of the part of Cr Fairbrother. The Panel explained this to the parties during each hearing. The Panel proceeded on the basis that although Cr Fairbrother’s conduct occurred on the beach, with some subsequent conduct relating to his failure to provide explanations to protect or distance the Council, the alleged breaches of the Code only crystallised upon the charge being found proven and the subsequent media notoriety. This too was explained to the parties. (The Panel notes that this is the most likely basis on which the complaints were regarded by the General Manager as being within time; see section 28V(3)(f) and (4)).

11. The Panel asked Cr Fairbrother why he had not made submissions to show that his personal conduct had not reflected adversely on the reputation of the Council, and had not brought the office of councillor and the Council itself into disrepute. Cr Fairbrother cited his lengthy tenure on Council and referred to a matter in which he had assisted two ratepayers. The Panel is unable to give weight to this response without there being any statements or evidence to support it and to contradict the allegations in the complaint.

12. The Panel asked Cr Fairbrother (in the Hyland/Duniam hearing) why he had not attempted to explain his reasons for deciding not to respond to the demands being made of him: to step aside from Council for a time, to apologise for his conduct, to resign from Council altogether. Cr Fairbrother said that as he considered that his conduct on 6 January 2021 was not a council matter, he had no reason to respond to any questions or demands relating to that as posed through the Council.
He also said that he had intended to answer the questions he had taken on notice at the June council meeting, but that the closing date for submissions to that meeting was earlier than he had expected and he was unable to meet that timeframe. He then did not attend the July meeting, so the questions on notice remained unanswered.

13. The complaints alleged that Cr Fairbrother’s conduct continued to reflect badly on the Council with his absence or withdrawal from council meetings subsequent to the Magistrate’s verdict. While Cr Fairbrother stated that he did not feel able to attend a council meeting when he had an adversarial relationship with a member of the public attending the meeting in the public gallery, the Panel considered that this did not excuse his lack of communication with the Council and his refusal to answer questions in a timely manner, in the face of considerable public and Council concern about his conduct.

14. In his closing statement in the Hyland/Duniam hearing, Cr Fairbrother stated that he was still unclear about the matters which were being investigated. The Panel considered that the complaints themselves made the subject of the complaints clear. In addition, the Panel made numerous attempts throughout the Hyland/Duniam hearing to clarify that his conduct on 6 January 2021 on Boat Harbour Beach was the conduct which in turn had led to his conviction in the Magistrates Court, and that conduct, taken as proven by the Magistrate, was being investigated to establish whether or not the Code of Conduct had also been breached.

15. The Panel determined that exposing his penis to a mother and her teenage son constituted conduct which the community considered a grave breach of the standards of behaviour it expected from a councillor. Cr Fairbrother has exhibited no remorse for these acts and has continued to deny his culpability. He has continued to maintain that as he considers the Magistrate’s finding him guilty was erroneous, therefore there is nothing he should do to protect the interests of the council and community which he committed to serve. The Panel disagrees with this view. Additionally, he has continued to maintain that his personal conduct at Boat Harbour Beach on 6 January 2021 was not a council matter, and therefore he had no need to offer any explanation or defence against the charges brought against him. The Panel disagrees with this view.

16. The Panel therefore determines Councillor Fairbrother did breach Part 3 (1), Part 7 clause 1(b) and Part 8 (7) of the Code of Conduct which was current at the time of the contravention.

Sanctions

Section 28ZI(2) of the Act allows the Panel to impose one or more sanctions. This is Cr Fairbrother’s first breach of this Code. The Panel takes into account Cr Fairbrother’s contributions to and good work for the Council and his local community. However, this was a serious breach that undermined public confidence in Cr Fairbrother, the Council and his local community. His behaviour was disgusting, disreputable and without justification. Cr Fairbrother took little action to mitigate the effects of his actions on the Council. Cr Fairbrother displayed little insight into the effects of his actions on the Council.

In the hierarchy prescribed by s 28ZI(2), the most severe sanction is suspension for a period not exceeding three months. The Panel needs to impose a sanction that denounces Cr Fairbrother’s conduct, deters him and others, and vindicates the complainants and the community. These considerations may justify the imposition of the maximum penalty where it is apparent that no lesser penalty is appropriate in the circumstances, notwithstanding that the councillor may have no prior breaches or that a worse case could be imagined.

Pursuant to section 28ZI(2)(e), in respect of each of the three complaints, Cr Fairbrother is suspended from performing and exercising the functions and powers of his office as councillor for a period of three months. Each suspension will run concurrently commencing on the day of the council meeting at which this determination report is included within an item on the agenda. (The Panel takes the view that it is not empowered to impose the sanctions consecutively).