On February 8th The Beagle requested from Council's Divisional Manager Governance & Administrative Services details of the legal opinion that was referred to by the Mayor during the Council meeting in regard to the motion to return webcasting, recording and archiving of Public Forum sessions with the add on of moving additionally the webcasting, recording and archiving of Public Access sessions that have not, to date been available digitally to the public.
During the Council meeting the Mayor clearly advised the public that "We have legal advice..."
I heard nothing back from the Council's Divisional Manager Governance & Administrative Services who would have overseen the seeing of legal opinion given that is his purview.
Three days later, on Friday Feb 11th at 12:46pm I emailed Council's Divisional Manager Governance & Administrative Services to remind him of my request only to receive an automatic response advising he was now on holidays until March 18th and that another staff member was the contact officer in his absence.
On Friday Feb 11th at 1:41pm that staff member advised me, via email, that my enquiry had been forwarded to Council’s Executive Services team and that a response would be provided inline with Council’s Customer Service Policy.
The question asked of the Council Divisional Manager Governance & Administrative Services was: "As advised by the Mayor today Council received legal advice in regards to the Mayoral motion as it stood requiring an eleventh hour change.
"Can you please advise what the advice, in essence, was and who gave that legal advice.
I am somewhat surprised that this legal advice was sought at the eleventh hour after the Agenda had been released to the public. Surely, in penning that Mayor Report, the Mayor sought input from key staff like yourself to ensure the intent of the Mayoral Report was achievable within the guidelines of modifications.
This would lead me to suspect that the Mayor may have initially been incorrectly advised at the time of drafting that Mayoral Report.
I believe that there is more to this that is not being said." With a follow up three days later: Can you please advise me of the status of my enquiry given that the origin and the detail of the legal opinion has not been revealed yet it played a major role in the outcome of the Mayoral Report and its original intent." Some background before we move to the response received a week later from Council's Council’s Executive Services team that reports directly to the General Manager. Before the last election it had been indicated by many of the candidates that they were in support of reinstating the webcasting, recording and archiving of Public Forum sessions with the add on of moving additionally the webcasting, recording and archiving of Public Access sessions In order to do so from Day One of a new Council it was considered whether it was possible for the councillors to restore the webcasting of Public Forum without first going through the full community consultation process. In this regard, attention was drawn to the "Revision of the Code' section on page 6 of the current meeting code.
It was collectively considered, and agreed, that this paragraph was very poorly drafted and, as a consequence, was somewhat ambiguous. It could mean that the General Manager can make changes only where they are insubstantial changes flowing from statutory amendments, or it arguably could mean that the General Manager is authorised to make amendments in either of two scenarios - one scenario being where there has been any change (substantial or insubstantial) to the relevant statutes AND the other scenario being where proposed changes (not flowing from a statutory amendment) were considered to be insubstantial.
It is important to recognise that the arguments for or against either interpretation have difficulties because of the poor drafting of this particular provision.
It is clear that the Mayor decided to proceed with motion to reinstate the the webcasting, recording and archiving of Public Forum sessions on the basis that the words on page 6 could be interpreted to mean that something like the resumption of public forum webcasting, that was insubstantial, could occur without community consultation. In this regard one needs to consider whether returning to the webcasting of the forum had anything to do with the way the meeting would be conducted or the efficacy of the meeting outcomes. In that context, councillors could have reasonably regarded the change to be insubstantial. In reality, webcasting is peripheral to the way in which the meeting is required to be conducted - it is simply about making something, that is already public, potentially more public. In fact, it was the view, and remains the view that any decision by the ESC to webcast or not to webcast the forum need not have been specified within the body of the Code of Meeting Practice. It could simply have been a separate decision by the councillors that could be reversed by a majority at any time.
It was of interest to learn that the General Manager or the Council Divisional Manager Governance and Administrative Services appeared to have some issue with the interpretation contained in the original Mayoral Minute that was published a week out from the Council meeting, especially given that they had already discussed it in Briefings a full fortnight before. It is therefore curious that the staff, the General Manager or the Council Divisional Manager Governance & Administrative Services didn't raise their concerns with the Mayor before seeking a legal opinion which would have allowed the Mayor an opportunity to have input into any approach to a lawyer or the Office of Local Government on his proposed (and now published) Mayoral Report.
Given the controversial nature of this decision, questions remain around the detail of the legal advice that apparently was "verbal". It is of the opinion of many that Councillors and Mayor should be given a written decision from the consulting lawyer with a brief of the specific questions asked and the specific responses. As yet the Mayor and Councillors have not been given the legal advice in writing though it has been requested. Should that "legal advice" not withstand scrutiny, it is now the view that the councillors could still decide to restore webcasting immediately. So what was the Council's Council’s Executive Services team response to the question: "Can you please advise what the advice, in essence, was and who gave that legal advice. On Wednesday February 16th 2022 a response came from the Executive Services Coordinator: "I confirm that I assisted the Mayor to draft his Mayoral report. The draft report to the Mayor was provided in good faith and to try and facilitate a positive outcome for the new Council.
As outlined in the report, I quoted the following from the Code of Meeting Practice:
‘The Council authorises the General Manager to reissue the Code without public exhibition to incorporate any amendments to the Act or Regulation, and where Council is of the opinion that any minor Amendment required are insubstantial.’
Unfortunately, I interpreted that statement incorrectly and in an error, I did not review my interpretation against the Local Government Act.
After the publishing of the agenda and on further review, the General Manager advised that the interpretation of the Code may be incorrect as it refers to ‘amendments to the Act or Regulation, and where Council is of the opinion that any minor Amendment required are insubstantial. As you are aware, the changes proposed by the Mayor are not amendments to the Act or Regulation. Therefore this part of the Code could not be used as justification for not placing the Code on public exhibition. Further, on review of the Local Government Act, it is clear that the Code of Meeting Practice cannot be changed without the Code being placed on public exhibition.
The following is an extract of the Local Government Act:
‘360 Conduct of meetings of councils and committees
(1) The regulations may prescribe a model code of meeting practice for the conduct of meetings of councils and committees of councils of which all the members are councillors.
(2) The model code may contain both mandatory and non-mandatory provisions.
(3) A council must, not later than 12 months after an ordinary election of councillors, adopt a code of meeting practice that incorporates the mandatory provisions of the model code prescribed by the regulations. The adopted code may also incorporate the non-mandatory provisions and other provisions.
(4) A code adopted or amended by the council must not contain provisions that are inconsistent with the mandatory provisions.
(5) A council and a committee of the council of which all the members are councillors must conduct its meetings in accordance with the code of meeting practice adopted by it.
361 Preparation, public notice and exhibition of draft code
(1) Before adopting a code of meeting practice, a council must prepare a draft code.
(2) The council must give public notice of the draft code after it is prepared.
(3) The period of public exhibition must not be less than 28 days.
(4) The public notice must also specify a period of not less than 42 days after the date on which the draft code is placed on public exhibition during which submissions may be made to the council.
(5) The council must publicly exhibit the draft code in accordance with its notice.
362 Adoption of draft code
(1) After considering all submissions received by it concerning the draft code, the council may decide--
(a) to amend those provisions of its draft mandatory code that are non-mandatory provisions, or
(b) to adopt the draft code as its code of meeting practice.
(2) If the council decides to amend its draft code, it may publicly exhibit the amended draft in accordance with this Division or, if the council is of the opinion that the amendments are not substantial, it may adopt the amended draft code without public exhibition as its code of meeting practice.
363 Amendment of the code
A council may amend a code adopted under this Part by means only of a code so adopted.’
Council sought verbal legal advice from a solicitor on Council’s Legal Services Panel. The verbal advice confirmed that any amendment to the Code of Meeting Practice would need to go out on public exhibition and therefore the Mayoral Minute that was published was unlawful.
The General Manager worked with the Mayor and Councillors to come up with a solution that would enable the sentiment of his motion to be realised. Council will now engage with the community on the livestreaming of public forum and public access, along with other matters in March with the draft Code of Meeting Practice to be placed on exhibition in May. In the interim, public forum and public access will be facilitated via zoom to enable greater community involvement.
Again, when drafting the initial report it was not my intention to provide incorrect information. Such a response required a response so The Beagle wrote back saying: "Council sought verbal legal advice from a solicitor on Council’s Legal Services Panel. The verbal advice confirmed that any amendment to the Code of Meeting Practice would need to go out on public exhibition and therefore the Mayoral Minute that was published was unlawful.
Can you advise why council sought legal opinion from a solicitor on Council’s Legal Services Panel rather than from the Authors of the Code being the OLG.
You quote directly from the Act that is readily at hand yet appear now to advise that you needed legal opinion to comprehend the intent. Surely this is in the purview of Mr Phillips or the GM. Given the importance of the matter I am most surprised that it was left to your interpretation, as you state.
You say “ After the publishing of the agenda and on further review, the General Manager advised that the interpretation of the Code may be incorrect as it refers to ‘amendments to the Act or Regulation, and where Council is of the opinion that any minor Amendment required are insubstantial. ”
This leads me to think that the General Manager did not review the Agenda prior to publishing. As the agenda is her responsibility I find this most surprising. Especially given the agenda was published with a mayoral minute you say was “unlawful”.
I take it then that you assisted in the drafting, you advised the Mayor that his intent was allowable under the code by your understanding, and you did so without seeking confirmation from Mr #### (the Council Divisional Manager Governance & Administrative Services ) or the GM before publishing … only to discover the mayoral minute was unlawful by way of the paid legal advice sought by the General manager to a panel member rather than free confirmation from the OLG or the free legal advice available via LGNSW.
Is that correct?
You then say “ The General Manager worked with the Mayor and Councillors to come up with a solution that would enable the sentiment of his motion to be realised”.
Can you explain why it wasn’t until the eleventh hour that the General Manager stepped in to assist in drafting a mayoral minute that would enable the sentiment of the motion to be realised.
Can I assume from your response that you work in isolation on the agenda and the general manager plays a minor role in the production and accuracy of the content?
Your response raises so many more questions of concern around the procedures and processes of bringing together the agenda and the actual role the general manager plays in its production.
The “error” has needlessly put the new mayor in a situation of not being able to deliver on his first mayoral intent. And from my perspective you have been given the job to fall under the bus whereas the error in interpretation should have been identified and ratified long before publishing the agenda by those who have the job description to do so.
Respectfully So there we have it ... an update for those interested on such things in the interest of Openness and Transparency. But has Council answered the specific question asked of them which was "Can you please advise what the advice, in essence, was and who gave that legal advice." Council's response was "The verbal advice confirmed that any amendment to the Code of Meeting Practice would need to go out on public exhibition and therefore the Mayoral Minute that was published was unlawful." So the answer is NO. All we know is that Council might have asked "Can any amendment to the Code of Meeting Practice would need to go out on public exhibition" and somebody, unnamed, from an unnamed legal service replied "No". Council have been caught out before around having "received" legal advice. Recently they advised that they had sought and received "legal opinion" that would allow them, under Section 88 of the Road Act to remove trees on a section of private land being used as an road way on Congo Road. Council stated on Nov 26th 2021 (Ref S028-T00009), in part :
The above is very clear. Council's legal opinion was basically go for it, remove the trees, you are allowed to as the road is public under common law definition and you can apply Section 88 of the Roads Act. With that Council arrived with machinery and chainsaws and a defiance that was given to the by "legal opinion". But that is where they came undone because they were immediately challenged that Section 88, if it did apply, only covered removal of trees On or Overhanging and not BESIDE. The bulk of the trees they wanted to remove were BESIDE the road formation, and therefore ON Private land. Realising that they were about to carry out an unlawful act and were being challenged and recorded they beat a hasty retreat. A copy of the legal opinion they received was formally requested on December 24th 2021 and Council has thirty business days to provide that. We wait to see if they comply with this formal GIPA given that they state they have such advice. The Congo Road North was closed to traffic and remains closed. Offering an update of the situation Council stated on February 10th 2022:
Council has sought further legal advice on this complex issue including advice to enable responses to questions raised by residents. Council is not in a position to be able to re-open the existing northern road through private land, or to indemnify the landowner against potential liability.
Additionally, Council has not been able to establish evidence, including through research by a specialist firm, to confirm the existence of a public road through prior use of the physical Congo Road north through the private land under Act 4 Willian IV. This means the land over the physical road is private land. So in December 2021 Council very clearly advised the community it had full authority to remove trees under Section 88 on the private land because of legal advice received telling the community that the the road was "public under the common law definition", only to tell them that that legal advice was incorrect and that the road was, under further legal advice, on private land and that Council is not in a position to be able to do anything in regards to the road that traverses private land. Keep in mind that all of this came about because Council claimed they had "legal opinion" and that legal opinion, still not provided other than by hearsay, was challenged. As we delve deeper it appears that Council carries out a swathe of legal actions and seeks legal opinion from its panel of legal advisors at considerable cost to the community. A reminder to the Councillors:
At the very least if Council staff advise Councillors that they have legal opinion that legal opinion should be in writing and the context given of the brief of engagement also provided. The days of simply saying "we have legal opinion and it will not be divulged because of legal privilege" needs to come to an end.