I refer to the recent posting (A statement from Council regarding HuntFest - April 6th ) by a community member of some of the contents of a letter received from the Eurobodalla Shire Council regarding its Code of Practice for approving applications to hire council venues.
The Code of Practice that is referred to in that letter was developed by council staff during 2015 and was finalised and adopted by the council's Executive Management Team in November of that year. The new code was then tabled for noting by councillors at the council's meeting on 8 December 2015.
In my view, there are significant problems with some of the statements that are contained in the council's recent letter. In particular, I would like to comment on two of those assertions.
“Council received written confirmation from the Crown Lands Department which agreed the process proposed by Council met its criteria in relation to the ICAC guidelines.”
A similar assertion was contained in the Staff Report that accompanied the new code when it was tabled at the Council meeting in December 2015. However, the relevant internal ESC documentation, that has subsequently become available to me, significantly contradicts the ESC's claim that Crown Lands had provided written advice in July 2015 agreeing with the proposed arrangements (that were eventually adopted by Council staff).
Following the tabling of the new code at the council meeting on 8 December 2015, I made a formal 'freedom of information' application to the council on 15 December 2015. My application requested copies “of all correspondence between the Eurobodalla Shire Council and the Division of Crown Lands in connection with matters leading to the development of the ESC's 'Code of Practice – Licensing of Public Reserves'” and copies “of any internal file records and notes relating to the above matter”.
In response to that request, I was eventually provided with copies of two relatively brief email exchanges – one from November 2014 and one from July 2015. Both email exchanges had been between the ESC's Property Manager and Crown Lands' South Coast Area Manager.
The November 2014 email exchange had taken place in the context of the (then) looming expiry of the licence that Moruya Country Markets Inc. had been granted to conduct the Saturday markets in Moruya. The email from Crown Lands indicated that its expectation was that licence opportunities such as that should normally be “progressed by way of an open and competitive process”. Not surprisingly, there was no specific reference in that email to the contents of any proposed ESC code of practice as it would appear that that code was not developed in any substantial way until the second half of 2015.
The relevant contents of the 3 July 2015 email exchange (which seems to have taken place after a related, but undocumented, telephone conversation) are as follows.
From the ESC Property Manager -
“I propose going ahead with the call for EOIs (expressions of interest) as we have a few licences that are coming up for renewal, none that I consider require going out for tender, e.g Caravan and Camping Expo held each year in November. If no other group makes a submission requesting use of that reserve in November then I believe the Trust can comfortably grant a five year licence.
I will amend the EOI details to advise that some commercial leases and licences may be subject to public tender. As discussed the EOIs are really only directed to not-for-profit groups, sporting clubs and small commercial operators such as water based activity hire, not cafes etc which would go to public tender.” (The bolding is mine.)
Reply from Crown Lands Manager - “Noted. Thanks for update.”
There was no subsequent 'correspondence' between ESC and Crown Lands before council staff finalised their proposed code in November 2015 and then formally presented that new code to councillors for noting on 8 December 2015.
I therefore reject the continuing assertions by council staff that Crown Lands had, in 2015, endorsed the ESC staff proposal to adopt a code that would require all instances of conflicting venue hire applications to be resolved using the local government tendering scheme. It is clear that what had actually been conveyed to Crown Lands in the above email from ESC was a proposed arrangement that might only sometimes involve the use of a tendering process in appropriate circumstances involving larger scale commercial activities.
“The Code of Practice includes an Expression of Interest (EOI) process, however, if conflicting EOIs are received a selective tendering process is undertaken. Nothing precludes Council using this process to determine the successful EOI applicant and in applying that process, Council has not breached any Act.”
In relation to the “not breached any Act” assertion, I would argue that this council has in fact breached the implied obligation contained in section 8A of the Local Government Act 1993. Effectively, that obligation is that, wherever possible, a council is to apply the utmost transparency to its decisions and its decision-making processes. The relevant guiding principle that is contained in section 8A is that:
“Council decision-making should be transparent and decision-makers are to be accountable for decisions and omissions.”
Also, in addition to any such statutory obligations on the councillors and council staff to avoid non transparency, there have been numerous government policy pronouncements and guidelines issued to the same effect. In almost every situation that is likely to be covered by the code in question, there are clearly other options available to this council for deciding conflicting venue hire applications without resorting to the use of a confidential tendering arrangement that, by its nature, severely limits the public's capacity to scrutinise the decision-making process.
Editors Note: Attached HERE is a a copy of a substantial paper that Jim Bright prepared on behalf of SAFE in May last year covering, amongst other things, the question of the (in)appropriateness of the ESC's use of the local government tendering scheme to resolve conflicting venue hire applications. That paper was sent to Crown Lands and subsequently to Office of Local Government (OLG) The paper was also presented it to the Legislative Council Committee inquiring into the management of crown land in NSW when Jim appeared before that Committee in Nowra last year. Neither Crown Lands nor OLG has subsequently contradicted or refuted anything that is contained in that paper. The document has been made available for those readers who might like a bit more technical detail concerning (what Jim regards to be) the overwhelming case against the ESC's use of the tendering process in this particular code. THE LOCAL GOVERNMENT TENDERING PROCESS AND ITS RELEVANCE (IF ANY) TO THE APPLICATIONS IN QUESTION - authored by Jim Bright