A tribunal has heard a graphic tweet sent to a member of the public by former councillor Elise Chapman was not of “sufficient severity” to warrant misconduct proceedings against her.

Acting for Ms Chapman on Wednesday, Julian Fidge made an application for summary dismissal of the review of a code of conduct panel finding against her on the grounds the case alleging misconduct had no prospect of success.

Dr Fidge told the Victorian Civil and Administrative Tribunal the tweet, which included an image of children with mutilated genitals, was “a relatively trivial matter” that should never have been sent to a conduct panel.

He said the exchange was “political discourse” and as such protected under Ms Chapman’s right to freedom of expression and the “single sarcastic tweet” did not reach the threshold of severity or frequency required to constitute misconduct.

“It is inevitable for people to feel uncomfortable when confronted by female genital mutilation, but this does not constitute misconduct,” he said.

“Political discussion from an elected representative, no matter how robust, does not constitute misconduct.”

Dr Fidge said the language used in the tweet, which included the words “would you like your fanny sliced off?”, was “apt” in the context of the “rough and tumble of Australian politics”.

“The fact that statements are offensive or insulting does not make them outside the realm of political discourse,” he said.

VCAT judge Marilyn Harbison dismissed Dr Fidge’s application on the grounds the tribunal was yet to hear evidence from Ms Chapman.

When later called as a witness, Ms Chapman told the tribunal she sent the image in response to a comment about Bendigo’s first mosque because it was her “political opinion” that “Islam and female genital mutilation are linked” and questioned her former colleagues’ characterisation of the image as “graphic”.

“It actually turns out it’s little boys so I guess it can’t be that graphic,” she said.

Ms Chapman said she believed she had no obligation to follow guidelines for appropriate councillor behaviour when not acting in her capacity as an elected representative.

“When I’m acting as Elise Chapman then those rules don’t apply,” she said.

 The hearing is expected to conclude by the end of the week.