In June 2025 the Office of Local Government (OLG) in NSW released its
Free Speech in Local Government guidelines (the Guidelines). The Guidelines are an important document for councillors and councils. They clarify the legal rights and responsibilities about free speech within a local government context and in particular, the rights and responsibilities of elected councillors when it comes to what they say in the public domain. The Guidelines also reminds us of something every civic leader should keep in mind: speech has power, and with power comes with responsibility.
In this article, we unpack what the new Guidelines say about free speech in the context of local government, and we share how councillors can stay on track with our CLEAR framework for free speech.
The Guidelines have been issued by the OLG due to concern that some local councils have implemented their Code of Conduct in a way that “unduly constrains councillors’ ability to engage freely with the community”. In particular, there have been concerns that the Code of Conduct complaint process has been used to weaponise, discourage or punish councillors from making legitimate public comment.
Previously, there have been tensions and disputes around what councillors (or council staff) are “allowed” to say, what limits apply, what criticism is permissible, especially in public or online, versus what might breach the Code of Conduct, defamation laws, or other constraints. The Guidelines aim to clarify those lines.
Importantly, the Guidelines have statutory force (i.e. they must be followed by councils, council officials and conduct reviewers) and they provide practical guidance on a number of key areas:
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The implied freedom of political communication under the Australian Constitution, and how free speech is regulated in NSW
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The importance of the ability of councillors to engage freely with the community, as part of their role as an elected representative
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How provisions in the
Model Code of Conduct for Local Councils in NSW should be interpreted/applied so that they do not unduly inhibit free speech
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Protections available to councillors in relation to defamation liability
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Rules around what can be said in council/committee meetings, how rules are applied, and the relationship of meeting rules to enforcement under codes of conduct
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How council media/social media policies are to be applied so they do not unduly constrain councillors’ engagement via media and online platforms
The Guidelines confirm that there is an implied freedom of political communication in Australia. This implied freedom is a constitutional principle that ensures Australians can make informed decisions about who they vote for, at all levels of government including local government. In this sense, free speech is a cornerstone of democracy. It allows citizens to criticise government actions, advocate, debate, reveal information, voice dissent and mobilise community participation.
Importantly, the implied freedom is not a personal right but a restriction on the government’s ability to interfere with the free communication of political information. It also not absolute, which means it can be limited by other laws.
As a democratic institution where councillors are elected by the community, the Guidelines confirm that councillors must be free to engage with their communities and participate in public debate on issues impacting the council and the community via the media and social media.
In doing so, councillors must be mindful of their legislative obligations under the
Local Government Act 1993 and in particular, the responsibility under section 232 to “uphold and represent accurately the policies and decisions of the governing body”.
The Guidelines further state:
"In practical terms, councillors remain free to speak about the policies and decisions of the council, but they must accept these decisions are lawfully made if passed by a majority and must not misrepresent them”
The
Model Code of Conduct sets out the ethical and behavioural standards of councillors which includes provisions that regulate what councillors can say and do in the public domain. The Guidelines clarify that these provisions should not be applied in a way that impedes a councillor’s ability to engage with the community or participate in “robust public debate”.
The Guidelines make it clear that when making a public comment, councillors can disagree with their council, council officials and members of of the community. However, whilst councillors are free to express personal views:
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They should not make personal attacks on other councillors, council staff or others
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Comments should not be abusive or intimidating
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They should not claim to speak for council unless authorised
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They should not disclose confidential information
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They must still accurately represent decisions
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They can be liable for defamatory content
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They must avoid prejudging issues that are coming to Council for decision
The Guidelines attempt to make it clear what crosses the line when it comes to what councillors can say online and in real life. However, in practice, speech doesn’t happen in a vacuum and what constitutes "robust political debate" is often a subjective view and is subject to changing social norms about what this means. What is said also usually impacts others and has consequences (both intended and unintended).
So even with the Guidelines now in place, this grey zone still remains. And as a councillor, you may find yourself in situations where you can say something but you're not sure if you actually should. Technically, it’s not a breach of the Code of Conduct and it’s not prohibited by policy. But the real (and harder) question is, should you?
Lets consider two examples:
Example 1: Social media commentary: Following a heated debate, a councillor posts strong criticisms about the Council decision on their Facebook page which is particularly critical of views of another councillor. It’s is considered to be part of the public debate and it is not a direct personal attack on the councillor. However, the itself post triggers a wave of personal attacks from the public on the named councillor and council staff that effectively turns into a social media pile on. The question then has to be asked whether the damage caused from the post is likely to outweigh the point being made.
Example 2: Chamber debate: A councillor uses provocative language in a council meeting which may not technically breach the rules in the Code of Meeting Practice or any anti-discrimination laws, but it makes the Chamber look combative, chaotic and disrespectful. People in the Chamber (both Council staff and other councillors) feel worn down by the antics and that’s the image the community sees. The question has to be asked whether the culture that this creates is conducive to collaborative decision making that is in the best interest of the community.
In this sense, the expression “just because you can, doesn’t mean you should” captures something key about the responsibility that comes with the implified freedom of political communication.
Thinking about the above and the requirements of the Guidelines, a simple and powerful framework to ask yourself before you speak is CLEAR:
C — Confidentiality - am I disclosing information that is in the public domain or that was not shared in confidence?
L — Legitimacy - am I authorised to speak on behalf of council? If not, have I made it clear this is my personal view?
E — Ethics and respect - is my content and tone respectful and free of personal attacks, abuse, or intimidation?
A — Accuracy - am I being accurate in representing Council decisions, even when I disagree?
R — Risk awareness - am I being mindful of legal risks such as defamation or prejudging matters that are still to be decided?
If the answer to most of these questions is “no,” it’s worth pausing before pressing “post” or leaning into the microphone.
And finally, its always worth putting the shoe on the other foot and asking yourself the question - how would I feel if I was on the receiving end of this? And knowing that you might not be the best judge of that answer, go a step further and ask yourself - how would I feel if somone I loved or cared about was on the on the receiving end of this? It usually gives you a better indication of whether its the right thing to do.
"Use your voice with care and always consider the human impact of your words"
Emma Broomfield - Founder & Lead Facilitator, Locale Learning
If you want to strengthen your council’s approach to good governance (in and out of the Chamber), then take a look at our
2026 Leadership Series package - an online professional development program tailored specifically for rural and regional local government councillors in New South Wales.
Get in touch today to find out how more about the package. Contact our Founder & Lead Facilitator, Emma Broomfield on 0421 180 881 or contact@localelearning.com.au for a confidential and obligation free conversation.
