Local government policies that pay for staff and councillors to pursue defamation claims against members of the public are a "sad reflection" of a culture of litigation filtering down from higher levels of government, according to a Perth defamation lawyer.
Councils across Perth have policies that can provide thousands of dollars for staff or councillors to take legal action over social media comments they claim are defamatory.
"[The policies are] a pretty absurd waste of ratepayer resources," said litigation lawyer and senior UWA law lecturer Michael Douglas.
"There is nothing stopping any person ... from suing in defamation, if they feel aggrieved.
"But that doesn't mean that money from the public should be going towards suing other members of the public."
The City of Rockingham will be the latest WA council to introduce a policy that can provide legal fees for councillors and staff to launch defamation claims, if a controversial proposal passes in the coming months.
Councillors and staff would be able to ask their CEO to approve up to $10,000 in legal fees to initiate defamation claims.
Mr Douglas said public officials ought to expect criticism.
"These policies are a sad reflection of a culture created by recent cases of high-profile politicians suing in defamation. Those cases were gross, and so are these policies."
According to Legal Aid Western Australia's website, defamation relates to published material which causes harm to a person's reputation.
In November last year, Defence Minister Peter Dutton was awarded $35,000 in a defamation claim against refugee advocate Shane Bazzi over a tweet that accused him of being "a rape apologist".
At a local government level in WA, the Rockingham policy is one of many across Perth aiming to protect staff and councillors from online attacks.
The City of Swan has a similar policy which allows staff and councillors to access up to $25,000 for immediate defamation action, if approved by the chief executive.
The policy states legal fees may be approved "where a person or organisation is potentially lessening the confidence of the community in the City by publicly making adverse personal comments", or where the comments are resulting in an unsafe workplace.
'Moderate cost'
City of Swan chief executive Jeremy Edwards said there had been a "small number" of applications to pursue defamation actions since the policy was introduced.
"These have all been resolved by requiring the person causing the alleged defamation to remove the offending material and/or publish an apology," Mr Edwards said.
He said the matters were generally resolved quickly and "at moderate cost".
Professor of internet studies at Curtin University Tama Leaver supports the policies.
He said he expected to see, as an element of employee wellbeing, more policies that provided legal fees for defamation or bullying.
"I think this is probably responding to the fact that ... the online environment can be very heated, and you can get what feels like abuse thrown at people," Professor Leaver said.
"I think having a mechanism where people feel that they will be supported, if they do have genuine ... lies, essentially, told about them online, in the course of their job ... to try and get that removed is important."
The fees would pay for "concerns notices" to be sent to people who the city alleged had defamed individuals, with the goal of pushing for an apology or an out-of-court settlement rather than an ongoing court process.
Councillors divided
The proposed Rockingham policy has been controversial since it was tabled in August 2021.
The city has received multiple letters from members of the public questioning why ratepayers should cover the cost of the legal action, and the topic has divided councillors.
A councillor, Lorna Buchan, said the policy "took liberties" well beyond those provided in a model policy distributed by the Department of Local Government.
"For staff dealing with the public, they're already protected as much as any other business that deals with the public," she said.
"No other business has a CEO, using, you know, business funds, ratepayer funds, whatever ... for staff to sue members of the public."
Ms Buchan said she had personally been the subject of online comments that could be considered damaging to her reputation, but it was her view that criticism was part of a councillor's job.
"Before you put your hand up for council, you're going to have to expect that not everybody's going to agree with the decisions you make," she said.
Another councillor, Craig Buchanan, said he took issue with councillors, in particular, using public funds at the sole discretion of the chief executive.
Mr Buchanan said he believed the council should make decisions on whether to pay legal fees to pursue defamation.
"It would also set an incredibly high benchmark for councillors to be aware that ... they couldn't simply go behind closed doors," he said.
"I'm not suggesting anybody would, but I'm talking about public perception."
Rockingham Mayor Deb Hamblin declined to be interviewed for this story but strongly supported the policy when it was first tabled last August.
"This is about defamation, this is not about criticism on social media ... and we need to make sure that our offices and us as councillors have a safe workplace," Ms Hamblin said at the city council meeting last year.
"Those costs are only approved in exceptional circumstances. What we're doing is not unusual."
The Rockingham policy has been distributed for public comment but other local governments have passed similar policies without seeking feedback from their ratepayers.
Funds should provide for 'good government'
The West Australian Department of Local Government said it issued an operational guideline as a recommendation of an inquiry into the City of Joondalup in 2005, which it said found "some council members [were making] uninformed and ill-advised decisions to pay personal legal expenses of the Chief Executive Officer".
The guideline includes a model policy, which says that a local government may fund legal representation if it is connected with staff or councillors performing their role and duties.
It states the funding should be able to be justified on the basis that the cost would "provide for the good government of persons in its district" and that it should be used to defend and not initiate actions, such as defamation, "except in special circumstances, which are likely to be very exceptional".
Feedback on the Rockingham policy is expected to come back to council for consideration in February or March.
