Welcome to this week’s editorial,
‘Oh what a tangled web we weave/When first we practice to deceive,’ from Sir Walter Scott’s epic poem, Marmion: A Tale of Flodden Field seems like a good place to start this week.
To get you up to running speed let us begin with the Mayoral Report during this week’s Council meeting. The Mayor, Mat Hatcher, and the rest of his councillors had, during the electioneering leadup, unanimously agreed that the webcasting of Public Forum and Public Access sessions be live streamed, recorded and archived.
The Mayor drafted a Mayoral Report that called for the changes to be made. His report was very clear in stating:
The Code authorises the General Manager to reissue the Code without public exhibition, to incorporate any relevant amendments to the Local Government Act 1993 or the Local Government (General) Regulation 2021, and where Council is of the opinion that an amendment required is insubstantial. It is considered that these amendments are insubstantial and do not require the Code to be placed on public exhibition.
That Mayoral Report needed to be in locked into place by the time of Briefings on February 1st so that the Agenda could be published and distributed to the public one week before the Council meeting. The Agenda comes under the General Manager and, given she and the Divisional Manager Governance & Administrative Services know all the rules it is evident that the Mayor’s statement “It is considered that these amendments are insubstantial…” must have met with their approval.
The Agenda was published.
At the eleventh hour on the morning of the Council meeting the General Manager advised the mayor that legal opinion said the intended insubstantial modifications could not be made. The Mayor said “Since publishing the agenda WE have received legal advice…”
It would be a reasonable next step to ask the question Who sought the Legal Opinion, When was it sought, and why was it sought given the agenda had already passed scrutiny of the General Manager. Exactly what was the legal advice and WHO gave it. It turns out that the Mayor was not able to see the legal advice because apparently it was verbal. It is understood that the General Manager has been asked to provide detail on the legal advice received and has not yet done so (Fri 11th 2022, 12pm).
All too often over recent years the community has heard a common mantra from Council saying that they have “legal advice”. More often than not the statement went unchallenged by councillors who were happy to accept the comment on face value. When pressed by the public for a copy of the legal advice referred to Council’s response was that they had legal privilege that protects communications between a lawyer and their client from compelled disclosure. But who is the client? Surely the Councillors, residents and the ratepayers of the shire are the Client.
A informal GIPA request for details around the legal opinion referred to by the Mayor that “WE” received has been lodged. It requests simple details such a When was the legal opinion sought, why was it sought, who sought it, who provided it, when was it provided, who was it provide to and what was the legal opinion.
According to the General Manager it was verbal. Therefore it was either made to her or a Council employee. Therefore there must be a record and because of that there is no reason why the above can’t be on the public record given the community has been told that Council, on their behalf, sought legal opinion, paid for legal opinion and received legal opinion.
I await an answer to my request. As does the Mayor and the councillors who are equally interested to learn of the specific details around the WHO, WHEN, WHY, WHAT advice sought and received.
Many years ago Council ran into some legal difficulties. A contractor had undertaken variations in a contract to install a new urban sewer network. There was rock encountered and a series of other obstacles. When Council refused to meet the variations the matter became legal. Rather than paying the variation Council dared to think they could win by threatening to take it to court. The threat didn’t work and it went to court. The council lost to the tune of around $11 million dollars. It was a victory for the contractor who Council was hoping might go backrupt. Instead it was a substantial finacial loss to the community. The impact meant that Council fell into a cycle of deficits for several years and needed to increase rates in order to maintain and renew its assets. The worst part of all of this was the surprise of the loss when the councillors learnt that the court case had been lost. They hadn’t even been told Council was contesting it.
After that it was agreed that all legal matters had to go into a monthly report to councillors so that they knew who Council was acting or defending against, why and how much it was all costing. That accountability stayed in place until recent times until it was removed. Now our councillors have returned to the dark ages of not knowing what legal opinion is sought and why.
Recently Council told the community it had legal opinion that allowed it to remove trees on Congo Road. They were challenged about that “opinion” and asked to provide evidence under a formal GIPA. It is now more than thirty days and still no evidence has been provided.
The ‘legal opinion’ was challenged and it failed. Who gave the legal opinion. If it was sought and paid for and found to be incorrect, possibly exposing Council to an illegal action, then who gave it and was there a refund? Council offers no evidence. Was it just a ruse? Have all the instances of Council saying it “has legal opinion” just a ruse?
There is much for the new councillors to learn and one key thing is to learn if they can trust staff. Presently the staff determine what legal actions to pursue. Recently, against all advice and direction, staff chose to take to court a contested $300 issue only to lose at a possible cost to ratepayers of over $7000.
Another case was the pursuit of a farmer alleged to have polluted a waterway with “evidence” suggested of photos as proof. A substantial fine was issued but instead of paying he challenged saying he was innocent. It wasn’t until the photos were not able to be produced under subpoena that Council backed down, after considerable ratepayer expense. These are just the tip of the iceberg of the legal overheads being paid by you and me that we never hear of. And all done under staff delegation in OUR NAME.
The Beagle will pursue Council every time they say they have “legal opinion” and will insist that Councillors sight that opinion, and accept and understand that opinion. The days of old are over.
Until next—lei
