The minutes of the last Council meeting (21st September) record the following ‘Request for Report’ – 

Crs Lobo/Magee: That a report be prepared on how Infringement Notices are issued to unauthorised sporting groups. The MOTION was put and LOST (8 to 1) 

Thus the sole voice (Lobo) advocating some semblance of common sense in the ongoing saga of ‘unauthorised sporting activities’ was effectively muzzled. We highlight this issue because at its heart lie fundamental questions of: 

  • Due process and transparency
  • Governance, and
  • Propriety

 Over the past few months we’ve become increasingly intrigued by the barrage of public questions emanating from one particular group and the failure of Council to provide reasonable and adequate responses. We’ve therefore embarked on a little research. According to both the Local Law of 2000 and the current 2009 version, it is an offence if a sporting ‘activity’ continues without a council permit. This was spelt out under clause 326 entitled ‘Organised Sporting Activities’ in the 2000 version: 

“ Participating in, or allowing, a formal, structured or organised sporting activity, including practice, within a public reserve or on Council land other than in designated locations.Direction: An authorised officer of the Council may require a person participating in or allowing a formal, structured or organised sporting activity within a public reserve or on Council land without a permit to immediately cease the activity and leave the reserve or Council land.”

 The 2009 version is basically the same, except for the addition of the one liner – “This clause should not unreasonably capture smaller informal groups.” Of course, ‘smaller informal groups’ (ie: 4 people, 6, 8, 15?) is never defined and that is the crux of the problem which has a long history. 

BACKGROUND HISTORY 

Some of you may remember the public humiliation that Council experienced following the ‘kids in the park’ and the football ‘shleppers’ incidents of 2007. To refresh people’s memory we offer the following YouTube highlights: 

http://www.youtube.com/watch?v=itNQ_Z1nbm8 

http://www.youtube.com/user/shleppers#p/a/u/1/PyvhEs-K0QQ 

Close on the heels of this shleppers debacle, we then had the ‘kids in the park’ fiasco. All the major broadsheets and TV channels had a field day. These are some of the headlines:  

“Watch out for the fun police Council threat to fine kids for playing in a park”

“Premier, stars slam fun police”

 “Two’s company, fees for crowds”

 “Council backs down on threat to fine park users Kids beat fun police”

“No play; festival OK”

“Premier plays bal”

“$5000 fine just for playing football” 

The real significance however lies in the comments made by council representatives, such as Paul Burke. We quote:

“… if there’s a group of people turning up regularly to use the facility, any reasonable person would believe it’s an organised group,” he (Burke) said. (Herald Sun, 27th Nov., 2007)

““Well, if you run in ones and twos, I don’t think there’d be a problem,” he (‘affable official) replied. But what if we wanted to dash about as a pack and support each other’s efforts? “Then you’d need a permit.”  (Herald Sun, 28th Nov., 2007)

“”Every other club, every other group, is abiding by the rules and regulations. This is a group of guys who are saying `We don’t think the regulations apply to us. Up yours’.” (Burke: Herald Sun, 25th May, 2007)

In the end of course, with pressure from Brumby, Ian Thorpe and other Olympians, Council back peddled at supersonic speed.  The ‘kids in the park’ had not only won, but council was ridiculed in taking such a sledge hammer approach to a bunch of cute little kiddies running around an oval. The about face is evidenced by this email from then Mayor, David Feldman – “all enforcement by council officers to be immediately suspended in relation to rules regarding organised sporting groups or any other parks-related policies that require judgements to be made by officers”. (Herald Sun, 30th Nov., 2007) In other words, what was  perfectly ‘clear’ to any ‘reasonable’ person two days earlier, was now vetoed. But by whom? Councillors or the administration? Who has the power to change so called ‘policy’? Besides, the Local Government Act specifically states (Section 76E (2): “A Councillor must not direct, or seek to direct, a member of Council staff- 

   (a)  in the exercise of a delegated power, or the performance of a delegated duty or function of the Council; or 

   (b)  in the exercise of a power or the performance of a duty or function exercised or performed by the member as an authorised officer under this Act or any other Act”

So who made the decision? If councillors, then was this legal, since this email from Feldman went out a month before anything even resembling the issue was brought up before a full council meeting (December 18th, 2007)!! Who was pulling the strings here?

THE PRESENT

Having emasculated their own law to a large extent, Council now faces the absurd situation of groups who have paid for permits seeing OTHER GROUPS WHO HAVE NOT PAID FOR PERMITS GETTING OFF SCOT FREE – time after time, after time, after time. This is the cause of the current onslaught of public questions to council. The questions are important: is there one rule for one group and another rule for others? Are some, more ‘equal’ than others? Why pay $1600 when others get the same for nothing? Are some in fact, beyond the reach of the law, which has not been rescinded, and which was endorsed in the updated 2009 Local Law? Why are Council allowing this to continue?  The past is obviously an important factor – but we believe there are other, even more important influences at work here.

Several of the public questions allege that certain councillors may have a decided ‘conflict of interest’ in this issue since they are ‘relatives’ and ‘mates’ of the specific group in question. At this last council meeting the minutes reveal that in response to a direct public question on this point, both Tang and Lipshutz did not answer the question. Instead, they cited the legalese whitewash of the Municipal Inspector’s report. Why did they not simply deny the allegation? Nothing could have been easier than to say ‘no’ – I’m not in any way associated with this group’. Lipshutz unbelievably claimed that the question was ‘vague’!!!!

We copy below a discussion taken directly from Facebook which is irrevocable proof that:

  • This group does not have a permit
  • This group is ‘organised’
  • This group intends to infringe the current and past law by subterfuge and
  • This group includes Josh Lipshutz – the son of Michael Lipshutz. (Readers should note that once the public questions started flowing, the photo of Josh disappeared from the website)

 

The discussion (minus the names of individuals and editing for the sake of brevity) goes:

Person ‘A’ – The title says it all. Ladies and Gents we have a problem and I want to open it up to discussion. Here is the problem.
As of yesterday Monday 23rd Feb 09 we were warned that we must speak to the Glen Eira City Council for allocation of sporting grounds to continue playing Ultimate Frisbee in and around the local parks, and until then play must be discontinued. This message was delivered by a park ranger and I followed up by speaking to a Ms Belinda Smith (co-ordinator in this area) and was told that many clubs have already be(en) turned away and that they are not taking further applications for permits to play at local sporting grounds. This is due to the destruction on the sporting ovals and that with the drought in full force, the clubs who already have arranged to play, may have to forfeit their games due to destroyed ovals.

OK, where to from here? We have been given some options.
– Local school sports grounds. (Belinda Smith advised this)
– Princes Park non sporting oval areas such as the grass outside Caulfield Recreation Centre. (Belinda said this was ok, BUT that we may get fined none the less for playing there as it is a non-ball-game area, and we are an ‘uncontrolled sport’.
– We could shift the matches to a) Point Ormond (the end of Glen Eira Rd) b) the field down the road from the Malvern Town Hall (that being in another council district and therefore buying us more time) c) can shift to play in St Kilda, the grass just outside Soul Mama

Please voice your opinion here I for one would love to hear it, and feel our whole group needs to decide what to do. I will also try arrange a meeting so we can sit down and discuss this.

Thank you for your support so far, we look forward to rebuilding as soon as possible. Please notify all those who played but are not a part of this group that they must join us as soon as possible to keep in the loop.

Person ‘B’ –  Well, well, well.. it seems to be ‘1984’ here in Caulfield.

I too have rang our friend Linda, and she told me that, we CANNOT use the fields.. I reminded her (of) an email, that floated around Late November, regarding the banning of children using Princes Park, and the Deputy Mayor claiming that the law is to be suspended. The article is below 🙂

http://www.australianit.news.com.au/story/0,24897,22845193-2862,00.html

I wil be contacting our friends Mary Bolling & Ian Royal.. i also mentioned this to Linda, and she said, OK, as she choked on her words.. I guess the embarrassment of this last time hasnt left her office, as she was quite surprised i knew about it.. The conversation quickly ended, as she tried to back-pedal.. quite funny..

Anyway.. not really in the state to be fighting City Councils, but someone may as well take my rage, and it looks like Linda has a nice, pretty target on her..

I’ll keep you informed 🙂 All hail Winston Smith…

Person ‘C’ –  …..The other option,

if your local pain in the butt council worker comes down to fine everyone – try all running in different directions, and see how many people they catch to hand out a $250 fine. And when they ask for your ID, say you don’t carry it with you when you exercise. What are they going to do, arrest you for not carrying ID and walking on grass? Unless there are signs up stating that you cannot use the facilities, then they don’t have a leg to stand on come legal proceedings.So, I say, go for your life and keep fit!!!

 

Person ‘D’ –   i wholeheartedly support this fight against the council, not to mention any other establishment. curse my unexplainable resentment of authority…we could use a rotation system, swapping from park to park while the council chases us. it would essentially be a sort of cat and mouse game, running from the firm hand of the law.

Person ‘E’ – As much as I would rather be throwing a frisbee around than wasting energy fighting council, attention here is our key leverage point. The more attention we can bring to this cause, the better, as this seems to be a cycle the council will act upon.

Person ‘F’ – This has been an issue for some time, surely you all remember the fight between Schleppers’ football and the council some years ago. it was only a matter of time before the council got to us as well.

Person ‘A’ –  Thanks to all those who attended the meeting, your input was fantastic. Please everyone notice that there is a frisbee match this sunday. Please tell me if you didnt get the invite.

Ok the lowdown. …I will be hosting one game a week. I will attempt to keep it localised to one day and not keep shifting too much in the week. Monday or Sunday are my preferred days. Note that this week is a Sunday match and is posted at 3PM and not at the usual time of 6PM. Monday matches will be at 6PM. (i just cant play this monday). Further Sunday matches will take place in winter when the sun goes down too early for people to make it from work.

The matches will be played in various locations. I will be posting the location order on the group page. We will be playing at the Elwood fields (next to StKilda Marina), Elsternwick Park, Orrong Park. These fields will be rotated one per week to avoid the attention of any one council. Yes it is out of Caulfield, but seriously people deal with it.

Where to from here? We will continue the rotational method for now and hopefully, we can arrange some matches in Caulfield Park which will be a Picnic Match that involves the use of picnic equipment as legitimate excuses to play on their fields and therefore circumvent crap from the council. (will post more details some time soon about this).Ok ladies and gents,

Thanks for the input, it was appreciated. I look forward to seeing you all back at the fields. Please bring some friends to play!!!! (End of Discussion)

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

CONCLUSIONS

This entire mess is of council’s own doing. The shleppers footy debacle goes back as far as 2003! What we have here is a reactive and intractable bureaucracy that likes to wield its power like a sledge hammer. Reasonable laws they could be (with some tinkering), but they have never been ‘reasonably’ enforced! The examples are numerous – threatening to fine a bunch of residents in Bentleigh who for 25 years have lovingly tended their agapanthus plants on their nature strips and thus beautifying their street; last year’s ‘decision’ not to fine dog owners who fail to pick up their dog’s faeces the first time, when clubs at Princes Park were yelling blue murder. So the end result is that up to this ‘decision’ – not one dog owner had received a penalty! The list goes on and on. So now, when the heat comes on, or when council is humiliated, we witness a 180 degree swing to the opposite direction – no fines, no noise, no publicity, please!!!!! A great way to run a council isn’t it?

 PLEASE NOTE: we are certainly not advocating that groups who are ratepayers should be denied access to local parks, nor should they be hounded and threatened with fines as the above groups were. What these examples illustrate above all is that when Council introduces a law that is unenforceable, draconian, or makes no sense to the local community, it is a recipe for disaster.

More importantly however, these events touch on crucial governance and transparency issues. We ask, and demand answers to:

  1. What role have both Lipshutz and Tang played in this whole affair?
  2. What role has the administration played in not enforcing the law?
  3. Who makes decisions on policy in this council?
  4. Where is the ‘transparency’ that the Municipal Inspector demanded? Why are decisions continually made behind closed doors?
  5. Why was Lobo’s ‘request for a report’ defeated 8 to 1? Who is hiding what?
  6. Does this council believe that through its non-action that it is serving the principles of ‘equal justice’ to all?

We eagerly await the next episode of ‘Right to Reply’ at next council meeting!!!!