Magpie

Magpie

This is a ‘guest post’ is by Nick about Greens Clr Max Phillips winning his appeal against his suspension, which would have prevented him serving the community as a Councillor for a period of two-months.  You can read my first post on this issue here – http://bit.ly/1fv0CFg

Imagine that you put your garbage out on Tuesday night. Marrickville Council makes a resolution that you must apologise, alleging that the correct night is Thursday. They say you breached the legislation & the code of conduct that governs garbage collection.

You say you will not apologise because you did not know from any Council papers or anything Council officers said that Tuesday was the wrong night.  You say you will not apologise because it would be insincere to apologise for what believe you did correctly.

Marrickville Council’s General Manager refers you to the Office of Local Government who gives you a $500 fine for refusing to apologise. You appeal to the NSW Civil & Administrative Tribunal & the Office of Local Government comes in & says you cannot really dispute the merits of Council’s finding that you breached the garbage legislation & code.  They say the only issue is your refusal to apologise & you clearly admitted that.  That is, they say the Tribunal hearing is not about the merits of the allegation that you breached the garbage legislation & the code.

They say challenging Marrickville Council’s finding can only be done in the Supreme Court in “judicial review proceedings.” But such proceedings are expensive & take a long time to resolve. More importantly, they are not appeals where you can challenge the merits of a primary decision.  Only serious errors of law or jurisdiction can quash the primary decision.

Nice work you think: the Office of Local Government is trying to close the door in my effort to challenge the merits of Marrickville Council’s decision; they are just trying to cover up the fact that they did not prove that it was wrong to put out the garbage on Tuesday.

This is what seems to have happened in Clr Phillips’ suspension case for publicly discussing the fact that Meriton offered Council $5 million in order to be allowed to build the Lewisham Towers development at heights over & above limits in the planning instruments. The offer was not illegal, but many community groups opposed the overdevelopment & Clr Phillips discussed the offer publicly. Marrickville Council accused him of breaching confidentiality.

There was a meeting where Council staff orally briefed Councillors of the offer.  Clr Phillips was not present.  Another Councillor told him the sum of the Meriton offer. Clr Phillips did not understand that the offer was confidential. He spoke to community groups & the media about it. Another Councillor also discussed the sum with ratepayers. Then there was a business paper prepared by Council staff that went to a Councillors’ meeting. The paper was in a red envelope suggesting confidentiality. Clr Phillips did not publicize much of what was in the paper. But he had publicized the sum offered.

The then Mayor Clr Macri & Labor & Liberal Councillors made a complaint.

The disciplinary investigator made some findings about Clr Phillips’ conduct. Significantly, the report said that Marrickville Council should “take steps to adopt polices & procedures for conveying & dealing with information that is intended to be confidential so that there is no potential for confusion …,” &, “… the invitation to the Briefing contained no reference to the matter being confidential & that the discussion would be about a confidential offer,” &, “On consideration of all the material it was concluded that the information provided to the Briefing was not confidential.” Also, that the material given in the Briefing “… could not be retrospectively made confidential.”

Despite such findings of fact in favour of Clr Phillips’ judgment a vote was taken requiring him to apologise. After he declined, Marrickville Council referred him to the Office of Local Government.  After some investigation the Office of Local Government imposed a two-month suspension from civic office.

At his appeal in the NSW Civil & Administrative Tribunal the Office of Local Government argued the only issue was his refusal to apologise, not the actual merits of whether or not he breached confidentiality.

On 6th May 2014 the Tribunal decided in Clr Phillips’ favour. The judgment notes some six times that the Office of Local Government did not bring relevant evidence to support a number assertions against Clr Phillips.

It is not forgiving towards the Director-General of the Office of Local Government. It said: “The Director-General may not presume misconduct for disclosing confidential information & deal only with the consequential allegation of misconduct of not complying with the resolution concerning the apology…”

The judgment includes the following significant findings:

“The Reviewer ultimately accepted that the information provided to the councilors briefing meeting was not confidential & had been disclosed to a community group by another councillor.”

“It was also concluded that that the information could not be retrospectively made confidential. These were among the findings accepted by resolution of the Council. None of these matters can therefore form the basis of an unauthorized disclosure of confidential information by Clr Phillips.”

“In short, apart from placing the agenda item in a red cover, no action had been completed to render the item confidential.”

The judgment then says, that even if Clr Phillips breached confidentiality, the punishment was too severe. A reprimand would be a fitting sanction.

It seems that the decisions against Clr Phillips were so manifestly unreasonable that no reasonable person would make them, as judges tend to call decisions where there is no policy to guide the obligations of a person & no actual facts against him. It seems that, even in the strict environment of judicial review, Clr Phillips would win hands down.  The Tribunal’s full judgment can be found here – http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=171212

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