A FORMER councillor has questioned the legality of rules under which Mornington Peninsula Shire Council now operates.
The Governance Rules adopted by councillors at their 24 August meeting included last minute amendments introduced by Cr Sarah Race.
Officers were provided with the amendments just before the meeting, but councillors were not sent a copy of what was proposed and only found out during the meeting when Cr Race introduced her proposed changes.
The argument over the legality of the new rules revolves around whether the changes were significant or “one or two minor changes”, as described by in-house lawyer Amanda Sapolu.
Former councillor Hugh Fraser, a barrister, says the amendments – which include increasing the powers of the shire’s CEO and restrictions on notices of motion – were so significant that they should have been exhibited for public comment.
The mayor Cr Despi O’Connor says they were “not significant”.
The shire did not respond when asked by The News if it had sought further legal advice.
“The amendment was unlawful, and councillors ought to have been, but were not, advised by management that it was unlawful and that the mayor ought to have exercised her powers and disallowed that amendment,” Mr Fraser told The News.
“By proceeding in this unlawful way in adopting the additional clauses, it has denied the community its democratic right to be consulted and have its views brought to the attention of council before it adopted these additional clauses.
“The simple fact is that council ought to have been advised by management that it cannot proceed contrary to the specific requirements of the Local Government Act. If so advised, the task of the mayor as chairperson ought to have been to reject the amendment putting forward the additional clauses.”
The mayor Cr Despi O’Connor said that council “fully complied with the Act by exhibiting draft Governance Rules to the public for four weeks”.
“If council were compelled to re-exhibit every time a document was amended due to exhibition, it would create a theoretically never ending cycle,” she said. “Council considered the amendments and considered whether re-exhibition was necessary. In doing so, council considered the community interest in the substantive Governance Rules, as well as the impact of the proposed changes and their significance in the context of the full Governance Rules.
“Having considered all that, council determined it had followed a process of community engagement, considered the feedback – or lack thereof – and made changes that were not significant to the exhibited rules.”
Council’s in-house lawyer, legal and governance manager Amanda Sapolu, said Cr Race’s amendment “contained essentially the same wording that had previously been discussed and debated by councillors over the course of the past 10 months, with just one or two minor changes”.
“All councillors were already familiar with the issues raised in Cr Race’s amendment as they were based on clauses that had formed part of the original draft of the Governance Rules.”
Ms Sapolu said it was not unusual for amendments to be “delivered to the shire just before [the meeting] and happens fairly regularly”.
It is understood that several councillors have expressed disquiet at the lateness of the amendment and have questioned why it was not mentioned at their meeting before the public council meeting.
While responding to some questions from The News, the shire has not said when the CEO John Baker was first notified by Cr Race that she intended to make amendments to the Governance Rules; when shire officers received similar notification or were provided with the proposed wording of Cr Race’s amendments; and what form the amendment was delivered so it could be added to the agenda.
Councillors who voted to adopt the amendment to the Governance Rules were Paul Mercurio, Despi O’Connor, Sarah Race, Kerri McCafferty, Anthony Marsh and Lisa Dixon. Against were Debra Mar, Susan Bissinger, Antonella Celi, Steve Holland and David Gill.
First published in the Mornington News – 28 September 2021
