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Lei Parker - 10 April 2018

Lei Parker made the below comments at the Ordinary Council Meeting 10 April 2018.

My name is Lei Parker and I am a resident of Tuross Head

I am here today to advise Councillors that I, and 32 others, have raised a class action Code of Conduct against the Mayor, Liz Innes for putting forward her Mayoral Minute MR18/001 REGIONAL AQUATIC,  ARTS AND LEISURE CENTRE AT MACKAY PARK, BATEMANS BAY on March 27th 2018 knowing that it introduced, without notice, matters that were routine, not urgent and also having elements that needed a lot of consideration by the councillors before coming to a decision and that such time as to absorb the contents of a 15 page, 6412 word document was not available prior to their being called on to vote.

The Code of Conduct also requests that, should an independent arbiter determine the Mayoral Minute to be in breach of Part 2.7.1 of OLG's 'Meetings Practice Note -August 2009' then the Mayoral Minute be withdrawn and the report as it stands be bought back to a Council meeting as an agenda item.

Background to the complaint:

On Tuesday March 27th 2018 Eurobodalla Mayor Liz Innes tabled a Mayoral Minute

Many in the community watched on via live streaming and from within the gallery and came to the opinion that the delivery of the Mayoral Minute was contrary to the guidelines of the Local Government Act and that the Mayoral Minute set out to gag the community.

Before I proceed I offer the following for clarity and as the basis of this class action Code of Conduct.

What exactly is a Mayoral Minute?

The Office of Local Government {OLG) Practice Notes make it quite clear, as follows:

2.7     Mayoral Minutes

2.7.1   What is a mayoral minute?

The mayor may put to a meeting (without notice) any matter which the council is allowed to deal with or which the council officially knows about (cl.243(1) of the Regulation). This would cover any council function under the Act or other legislation, or any matter that has been brought to the council's attention, for example, by letter to the mayor or the general manager.

This power to make mayoral minutes recognises the special role of the mayor. A mayoral minute overrides all business on the agenda for the meeting, and the mayor may move that the minute be adopted without the motion being seconded.

Mayoral minutes should not be used to introduce, without notice, matters that are routine, not urgent, or need research or a lot of consideration by the councillors before coming to a decision. These types of matters would be better placed on the agenda, with the usual period of notice being given to the councillors.

The councillors did have forewarning, with a quick mention that morning before the Council session, that an as yet to be finalised Mayoral Minute was going to be delivered during the March 27th Council meeting however they were not privy to it as Council staff were still preparing the document and would be doing so whilst the Councillors were in session.

The councillors only knew it was arriving sometime..... with the expectation that, as a Mayoral Minute, it would not introduce,  without notice, matters that were routine nor would it introduce,  without notice, non-urgent matters or any matters that might require research or a lot of consideration by councillors before coming to a decision.

Little did they realise that they would be given a 15 page document with 6412 words and only 15 minutes to read it.

When the Mayoral Report was introduced (Timestamp at 3:05:25 on Live streaming archive video http://webcast.esc.nsw.gov.au/archive/video18-0327.php) Mayor Innes said to her fellow councillors "I hope you have all had an opportunity during our fifteen minute break to have a read and to have a consider of what was put forward in the Mayoral Notice of Motion"

A comment from Councillor Anthony Mayne revealed the lack of time perfectly when he stated he had had no time to read the report at all.  "I apologise ... I did not get my fifteen minutes"...

Fifteen minutes to read fifteen pages with 6412 words ?

(Note: The average adult reading speed is 300 words per minute - the reading speed of our Councillors is unknown but it is doubtful that any of them could have read it properly in less than 20 minutes)

A class action Code of Conduct has now been raised against the Mayor for her Mayoral Minute that did in fact introduce routine, non-urgent items and also introduced, without notice, matters that might require research or a lot of consideration by councillors before coming to a decision.

Some key points and issues, in relation to the inappropriateness of the mayoral minute are as follows.

(1)  Part 2.7.1 of OLG's 'Meetings Practice Note -August 2009' says that mayoral minutes should not be used to introduce, without notice, matters that are:

"not urgent,

or need research or a lot of consideration by the councillors before coming to a decision."

There does not appear, in the opinion of those who have now had time to read it, that there is anything in the mayoral minute that was of such urgency that would not have reasonably allowed for the matters to have been deferred until the next (or even a later) council meeting.

The Mayor does however make an apology in her Mayoral Minute preamble saying that it wasn't in the agenda however "not withstanding the announcement that was made last night by the NSW Premier Gladys Berejiklian this IS AN OPPORTUNE TIME at this Council meeting to progress things and move things forward."

"Opportune time" does not equal URGENT.

The matter in the Mayoral Minute that clearly deserved more than fifteen minutes notice for proper consideration by councillors and the probable impact to the community being:

- Support the inclusion of a 25m by 10 lane lap pool.

Councillor McGinlay, with genuine concern during debate, bought up a question around this point and the point that the Mayoral Minute would bring an inevitable cessation of any further discussion with community groups over the inclusion of a 50m pool.

Councillor Mayne also reiterated his concerns of the Confirmation of the Otium Option 1 Concept plan as possibly thwarting further discussion regarding the capacity of performance space being set at 450 to 500.

Additionally with the newly declared inclusion of a 25m 10 lap pool it is of concern that this "option" is not in the Option 1 costings nor has this cost been calculated by Council so that it might be compared with the estimated cost of a 50m pool, as requested by the community.

It was clear from both of these councillors that they felt there was an opportunity for a lot of consideration by the councillors before coming to a decision.

The final, left of field, wildcard in the Mayoral Minute was the inclusion of "investigate the potential for the provision of long distance swimming facilities in the ocean at an appropriate location in the Batemans Bay area."

This element is considered, by all who read it, as NOT Urgent and also, as it sets to allocate unspecified funds and resources to the investigation without any definition of limit, scope or even justification, it too flies in the face of what is acceptable in a Mayoral Minute being non-urgent and routine and requiring consideration.

(2)  Part 2 of Module 8 of the Ombudsman's 'Good Conduct and Administrative Practice - Guidelines for state and local government' provides the following instructions to councils in relation to government guidelines such as the above* mentioned OLG practice note.

"While there is usually no legally enforceable obligation to comply with government circulars, memoranda …, decision makers should usually have regard for them and comply with their terms in the interest of fairness, equity and consistency.

Decisions not to comply with circulars, memoranda and other similar codes should be justifiable, and reasons for taking another course of action should usually be documented."

"Any cavalier or unjustified disregard for such guidance would be a matter of serious concern to the Ombudsman."

No justification was provided in the Mayoral Minute for why councillors were being required to determine the matters in a time-frame and circumstances contrary to OLG's guidelines.

From the DLG Meetings Practice Note August 2009  it clearly states:

All councillors, staff and community members participating in council meetings must act with good intentions and behave to the standard of conduct expected by the community.  The principles upon which the Model Code is based include integrity; leadership; selflessness; impartiality, accountability; openness; honesty and respect (Section 4, Model Code).  Meetings must be run fairly and the procedures used should improve decision-making, not personal or political advantage.

It is considered by the 33 signatories to the Code of Conduct that the principles upon which the Model Code is based were not applied to the Mayoral Minute of March 27th, 2018 and failed in the elements of integrity, impartiality, accountability openness, honesty or respect and that it was delivered for political advantage.

The Mayoral Minute delivered on Tuesday March ii», 2018 is considered to have been mis-used.

It is considered to be an inept attempt by the Mayor and her executive advisors to ram though their intended course of action and to close down any further community discussion regarding inclusion of a 50m pool in the complex.

The matter is now with the Office of Local Government for their determination.