MORNINGTON Peninsula Shire mayor Cr Anthony Marsh has been cleared of any wrongdoing after an arbiter dismissed a councillor conduct complaint application over Marsh’s decision to rule three motions out of order at council meetings in June.
The application was lodged by councillors David Gill, Kate Roper, Max Patton, Michael Stephens, and Patrick Binyon on 27 August. It alleged Marsh breached the Councillor Code of Conduct when he ruled Gill and Patton’s motions out of order and subsequently ruled their dissent motions out of order.
The blocked motions asked the council to work on developing a new climate resilience plan, running community engagement on climate policy, and preparing detailed reports on recent changes to Community Investment Funding, including effects on arts and First Nations programs.
Marsh blocked these motions before debate, saying they were effectively attempts to reopen or change earlier council decisions, which means they had to follow rules for revoking or amending past resolutions.
In a written decision released on December 1, arbiter J A Silver found Marsh acted within his power as chairperson and followed governance rules accordingly when he blocked the motions.
Silver examined how the three June motions fit under clause 22 of the governance rules, which deals with attempts to overturn or change previous council decisions, and clause 16, which sets out the powers of the chairperson to determine whether a motion is acceptable.
Under clause 22, a motion which seeks to revisit, alter or reverse an earlier decision must follow a set process. It must be signed by at least two councillors and one of them must have originally supported the earlier decision.
In this case, the arbiter agreed that all three motions asked for new debates on matters the council had already decided. While the motions did not explicitly call for a reversal of these decisions, the arbiter found they would effectively reopen the council’s previous decisions on climate change, arts and culture funding, and First Nations work. Because of this, clause 22 applied.
Clause 16 gives the mayor, as chairperson, the responsibility to not accept a motion which is vague, ambiguous, or outside the powers of council. That includes deciding whether a motion is a revocation or amendment attempt, even if worded indirectly.
Silver said he found it unusual that despite their clear intention, neither clause 16 nor 22 explicitly empowered the chairperson to rule out non-compliant revocation matters. When interpreting the governance rules, however, Silver said he was satisfied that clause 16 includes the power to rule out motions that do not comply with clause 22.
Silver therefore found that Marsh used clause 16 appropriately when he determined the motions fell under clause 22 and therefore did not meet the required criteria.
“Given my interpretation of the Governance Rules, I am satisfied that [Marsh] acted within power, and that none of the three motions qualified for consideration,” Silver wrote in his decision.
Marsh said the arbiter’s decision aligned with government and legal advice he had already received.
“The Arbiter dismissed the application seeking a finding of misconduct, confirming the same position that was provided in the governance and legal advice ahead of the June meetings, and again by the organisation in July,” Marsh said.
“I acted on that advice and in accordance with the Governance Rules, and the Arbiter reached the same conclusion. I will continue to chair council meetings consistently, transparently and without fear or favour. My focus remains on getting on with the job and delivering outcomes for our community.”
Gill told The News “As discussed with the arbiter, arbitration was the only avenue we had to clarify the powers of a mayor to reject councillor Notices of Motion and dissent motions”.
“This was a complex legal matter, dealt with on the papers with minimal legal costs and without a formal hearing, as all parties had agreed.
“It was seeking, in part, a ruling on the chair’s powers to deny motions that had already been approved by the CEO, the controlling authority for agenda items coming to council meetings.
“The decision has major ramifications for council meetings across the entire local government sector, directly impacting the ability of elected councillors to represent their communities in debate.
“Although we are disappointed with the outcome, we accept the decision which was based on present governance regulations.”
A shire spokesperson said now that the complaint has been dismissed it is behind them.
“We look forward to progressing the work with our community to deliver on the improvements we’re making,” the spokesperson said.
“We will not be making further comment on this matter.”
First published in the Mornington News – 16 December 2025
