The agenda items for Tuesday night’s council meeting contain Newton’s response to Penhalluriack’s questions regarding the potential dangers of the Glen Huntly Park mulch facility. We offer our analysis of the response and are seeking readers’ comments. Mr. Newton is also free to respond. We guarantee that we will publish his reply intact.
Right from the opening sentence we have some concerns as to the connotations that the wording might have for readers not in the know. It begins: “Purpose: To respond to questions without notice at the ordinary Council meeting of 15 March 2011”. Notice does not have to be given when addressing a question to a council officer. Councillors are free to ask as many questions as they like. Readers should therefore ask themselves what is the motivation and purpose in including such phrases when it has no legal or material relevance to the issue?
Only after an irrelevant one page waffle about the mulch heap itself do we come close to the nitty gritty of the issues. We’ve categorised these into broad topics.
Questions about dates
On the 19th November 2010, Penhalluriack ‘tabled’ a request at the Audit Committee meeting. The attached Penhalluraick document makes it clear that he had concerns well before the 19th November – ie. “I have raised this matter with council officers on two occasions”. Thus management knew of the concerns well before the Audit Committee meeting of the 19th November. This document also reveals that the opinions gleaned from the Dept. of Health do not completely allay Penhalluriack’s fears as to the potential risks. Given that a scientific report was subsequently called for, indicates that the Department’s advice wasn’t all that conclusive or fully convincing. Newton does not directly address these additional concerns. Further, and most importantly, Penhalluriack’s attached document is incomplete – it ends in mid sentence! So, how many pages are missing? Why aren’t these pages included? What did they contain? If correspondence between councillors and/or committees is suddenly (and conveniently) made public then surely it behoves Newton to ensure that the entire document is available – not just selected sections? Again we ask: what is the motivation and purpose behind this action?
Newton then tells us that “The consultant, Noel Arnold and Associates, conducted an assessment and their report was submitted to the next meeting of the Audit Committee on 25 February 2011.” There is much confusion here. In response to the question ‘when was the first draft of this Opinion received?’, Newton responds that it was the 2nd February. But we also have the sentence “The report was received by Council on 14th February”. [Note the crafty, and some might say, devious use of language! COUNCIL did not receive anything – otherwise they would have known about the report! It was received by management and possibly the Mayor only! ] That leaves us with two distinct dates and a time lag of twelve days. So, are we meant to assume that there was some careful editing between the reception of the first draft (Feb 2nd) and the final draft on Feb 14th? If so, why the need for ‘redrafting’? Who determined this need? What changes were possibly made between the first and final draft? And the 64 dollar question – if changes were made, then WHY WERE THEY MADE? What was the motive behind such changes?
Why did the Audit Committee even have to REQUEST information? Why wasn’t it simply handed over to them (regardless of official meeting dates)? The report was distributed to the Audit committee on the 18th Feb, one week prior to the formal Audit Committee meeting. In the end it’s taken at least 5 months, since Newton confirms that Penhalluriack first raised the issue in September. One must therefore ask whether the issues that Penhalluriack raised were expedited in the most timely manner.
Playing with words
“The minutes of the Audit Committee’s meeting of 25 February 2011 are included at Item 8 on the agenda for this Meeting. They state: “The Chairman noted the report the report (sic) on the mulch bin at Glen Huntly Park and concluded that no action was required by the Audit Committee. If Councillors had any issues, they could raise them with the Council.” No one raised any issues with any officers at the Audit Committee’s meeting of 25 February.”
Two essential points need to be noticed here. The chair of the audit committee (Gibbs) announced that no further action is required. The Audit Committee had therefore washed its hands of the matter and tossed the ball over to ‘THE COUNCIL’ – meaning the full council as constituted at an Ordinary Council Meeting. Newton, ever so subtly, then attempts to downgrade the significance of the report by inferring that since ‘no one raised any issues with officers’ it does not warrant attention. Wrong! The matter as expressed by Gibbs was to go to COUNCIL if anything was to happen. There was therefore no point in ‘raising’ the issue with officers. Besides, Penhalluriack had already raised the issue twice with officers! Would a third time have made any difference? Hence, Newton’s claim that no-one said anything is simply irrelevant to the issue since there was no longer any point in raising the matter with this group. Newton’s ‘excuse’ that no councillor spoke up at this meeting is spurious. If the matter was to proceed to full council, then there is no need for any councillor to say anything at such a meeting!!!!!
The other point that needs to be made relates to the question of the Audit Committee’s role, function and purpose. According to the Minister’s gazetted Guidelines, it is the responsibility of the Audit committee to provide information to councillors and THE COUNCIL. It is for THE COUNCIL to determine the direction that it wishes to go – not the Audit committee. In this, the audit committee has not fulfilled its function in warning THE COUNCIL and hence has placed THE COUNCIL and councillors in peril. Councillors are bound to fulfil their fiduciary duties based on the information that is presented to them. It is inconceivable that (1) the audit committee has to first ask for information from management and (2) that this information (the scientific report) is then not passed on to ALL COUNCILLORS and THE COUNCIL. This is a failure of governance and contrary to best practice of audit committee and management principles. Page 13 of the Minister’s recently released guidelines makes this absolutely clear. We quote:
“Role of the LGE (Local Government – ie. THE COUNCIL)
The role of the audit committee, as an advisory committee to the LGE, is to assist the LGE to discharge its oversight and corporate governance responsibilities, whereas the role of the LGE is that of a constituting and governing body.
Responsibilities of the LGE
The LGE:
Establishes the audit committee with an appropriate charter, membership and level of resources (including the provision of a secretariat) to enable it to effectively carry out its activities having regard to this Guide.
Ensures that there are appropriate reporting mechanisms in place between the LGE and the audit committee.
Periodically reviews the performance of the audit committee as a whole, and of the independent members of the audit committee. The audit committee performance review can be (and often is) by self-assessment.
It is important for the members of the audit committee and the LGE to recognise that the advisory activities of the audit committee do not absolve the LGE members of their responsibilities. Individual LGE members are obliged to reach their own decisions based on a proper assessment of the information, which includes, but is not limited to, audit committee advice and report”.
So, how are councillors meant to fulfil their ‘responsibilities’ if they are not in possession of the full facts? How can the audit committee function if it has to ‘request’ information from management? And when was the last time that COUNCIL actually ‘reviewed’ the performance of both audit committee members, and external members?
In the interests of brevity, we will conclude our analysis at another time. However the points that readers should bear in mind are:
- Has management acted in a timely manner in regards to the potential risks
- Has management fulfilled its duty of keeping councillors, as well as the audit committee fully informed in a most timely fashion
- Have both the audit committee and management lived up to the standards required and acted in accordance with best practice guidelines?
- Is Newton’s response an adequate and acceptable reply to Penhalluriack’s questions?
- What does this episode tell us about management in Glen Eira?
Glen Eira Debates 
April 3, 2011 at 12:13 AM
What a shambles. Gibbs, McLean, Lipshutz on the committee for eons and eons. Newton and Burke deciding who gets what information – but only after its been suitably arranged and edited. Penhalluriack deserves full credit for finally showing us how the fat cats at this council operate. Also nice to know that the privacy act is only in operation when Newton wants it to be.
April 3, 2011 at 6:31 AM
Newton is a master at ducking and weaving and pouring you know what on anyone who dares to question or oppose him. This time though he’s been caught out good and proper. I also recommend seek.com.au for both him and Gibbs
April 3, 2011 at 7:13 AM
i couldn’t help visualising frank as mick of crocodile dundee saying to the assailant being andrew ‘is that a mulch? now that is a MULCH!’
and with my tongue firmly in the cheek here is an illustration of ‘Crocodile Frank and Bureaucrat Andrew’
April 3, 2011 at 10:57 AM
Newton’s paper is nothing more but a lame attempt to extricate himself from a really sticky situation. Information was not passed on to those it should have been passed on to. That much is absolutely clear. Nor do we get to see the actual letter or advice from the Department of Health in order to come to our own conclusions. Newton is a stickler for only putting down on paper what suits him. My trust in the single paragraph cited is foundering. I need to see the entire letter, not a few selective sentences.
I also agree with Gleneira that the whole business about the audit committee must be fully investigated. If the scientific report did make certain recommendations Gibbs as chair of the audit committee is not doing his job when he refuses to act upon those recommendations. His decision to state that the audit committee will go no further is not good enough. Makes me think what on earth is going on and whether or not there could be some collusion happening. Lipshutz, as a lawyer, also has got plenty to explain in letting this go. What this council needs more than anything is a thorough investigation and cleanout. The finance committee must be reinstated to oversee audit committees and Newton. From an outsider’s point of view, there simply isn’t enough scrutiny of what goes on behind those doors of power.
April 3, 2011 at 11:12 AM
Talk about a long winded, incomprehensable blog that is full of supposition and basic errors in fact and conclusion.You have deliberatly ommitted the most important question the public needs to keep at the back of their mind all the way through this and that is which Councillor stands to personally benefit by casting doubt as to health risks regarding the mulch pit? Which Councillor appointed Goudge (found guilty by a Magistrate) as their Nominee allowing Goudge to bring down a Council? Which Councillor constructd an illegal wood holder on their premises which potentially was a huge safety risk to the general public and their employees? Which Councillor failed to follow Regulations in ‘filling in’ a development in Carnegie and is rumoured to have required political assistance to force Council to act to expedite the impass? Andrew Newton has always protected us from this Councillor and this is his payoff. Answer these propositions Glen Eira and you will come to the conclusion that I have. The State Government needs to sack this Councillor, the Councillor who gave us Goudge.
April 3, 2011 at 12:12 PM
Anonymous raises a amazing point – all along Frank Penhalluirack joined Council just so he could corner the market of mulch in Glen Eira. Newton, on the other hand, already has the market cornered in bullshit.
April 3, 2011 at 12:13 PM
Dear Anonymous,
we just couldn’t let your vitriolic comment go by without any response. So here goes –
1. Long winded? – in some eyes, perhaps. But given the importance of the issue of good governance, surely you don’t want a mere sound byte do you? We simply present the facts based on the information before us.
2. Incomprehensibe? – well, to some extent that would depend on the intelligence of the reader, wouldn’t it?
3. Supposition and basic errors in fact? – please, oh please, point out ONE SINGLE instance that you believe is an ‘error’ or a non feasible conclusion? That would assist us greatly.
4. a councillor ‘personally benefiting’? – we assume of course that you are referring to Penhalluriack. No doubt he can defend himself if need be. However, given that he is a very successful businessman, it is hard to comprehend how in the evenuality that the Glen Huntly mulch facility is closed, he would stand to ‘cash in’ on such a closure. We certainly doubt that mega bucks are tied up in the selling of mulch! And Penhalluriack sells thousands and thousands of products. He certainly doesn’t need to bank on added customers for mulch in order to do very well thank you!
5. Goudge brought down a council? – wow, he is indeed superman then. Even if this does contain the slightest modicum of truth, surely he had numerous helpers. Erlich is a perfect example of santas little helper isn’t he – what with all those fights in council chambers, and his perhaps business dealings with certain companies? No, we’re afraid that we can’t agree with you on that one. May we suggest that you search the local and state media, read Hansard, and of course the Inspector’s Report of 1995 in order to glean a clearer picture of who was doing what to whom? We repeat – goudge was not alone. He had numerous assistants, and probably backstabbers, to help bring down the council.
6. ‘rumoured’? – For someone who doesn’t like supposition and ‘errors’, please pray tell, why should you (and therefore we) believe in ‘rumours’? Sorry, but your case has just taken a fatal nosedive!
6. Newton and this councillor? – now how would you know what goes on behind those closed doors, we wonder? You woulldn’t, couldn’t, perhaps be related to Mr Newton could you?
7. ‘sack this councillor’ – how many more sackings and investigations will it take before this council is capable of functioning in a clear and transparent fashion? Obviously the past 12 years of turmoil, intrigue, division,mistrust,whitewashes, etc. etc. have achieved absolutely nothing. So do pray tell us anonymous. Goudge is gone, Martens is gone, Douglas is gone, and countless other staff and councillors. Who remains except you know who!!!
April 3, 2011 at 6:07 PM
Council should be applauded if it supports the proposed apartment complex in Nicholson Street McKinnon. The creation of additional housing for those wanting to get into the area without having to pay over one million dollars is a plus for young people these days. I didnt see the original plans but can see that the council officer has given his determination with reductions in scale. I have lived not far from the proposal for over 30 years now and have been inundated with paperwork in my letterbox and door knocking from people with concerns who need to accept that times change. As a real estate agent myself I cannot for the life of me see that the agent heading up the opposition has seriously considered the future growth prospects for mckinnon. Only a few weeks back a smaller site sold for big money in Bent Street and the purchaser is planning a big complex. Go for it Councillors!!!!!!!!!
April 3, 2011 at 6:10 PM
I will be one of the first to line up to buy an apartment in nicholson st mckinnon to that I can remain in the area that I am in now with my parents……..There hasnt been anything like this in my affordability range.
April 3, 2011 at 6:25 PM
I will point out one matter which shows the type of bias you hold and the fact that this particular blog is a complete beat up. Your heading contains the word ‘Alibi’. Normally this word is applied in a criminal situation and implies wrongdoing.Tell us simply what the CEO is accussed of doing? I put to you a number of situations where the behavior of the accussing Councillor was highly questionable. You have deliberately failed to answer these questions and you have deliberately tried to obfuscate the situation. You are telling us that you agree with the fact that a Councillor is questioning the CEO over a matter of Public Safety and he/she does not share this matter with their collegues. They let months go by and then this hero ambushes the CEO at a public meeting and runs to a Committee of Council to tell tales. What planet are you living on Glen Eira.The Audit Committee, a Committee we are told previously that assess risk then fails to give this Councillor what he wants so you Glen Eira, want the Audit Committee investigated. There are two sides to every story Glen Eira and if you opened your mind it would be far better for all of us.
April 3, 2011 at 6:52 PM
Leaving all the faults of the audit committe aside for a minute, the fact that they have had this appointment for almost 20 years defies any piece of corporate governance around. Companies have directors for a 12 year period max. McLean and Gibbs need to resign now and allow some new blood into this critical role. Having just watched Ghandi for the better part of the day, I have learnt what happens when people try to hang on to power for too long!
April 3, 2011 at 8:23 PM
don’t forget Lipshutz’s longevity on this committee too. 6 years is 5 years too many – especially when he sat on both the audit and the now defunct finance committee at the same time. How’s that for independent decision making and oversight. The whole damn thing is as rigged as it could be. They shouldn’t resign – they should be sacked!
April 3, 2011 at 9:16 PM
Anon, do yourself a real favour. If you don’t like what seems to be the majority opinion here then present an argument that is convincing, rational and coherent. All you’re doing is showing everyone how intellectually challenged you are. Attacking people is not an argument. That’s the routine of bullies and thugs.
April 3, 2011 at 10:51 PM
Frank and Glen Eira give a carefully crafted an impression that the CEO failed to act when initially questions were asked about the mulch pit in September 2010. What Andrew Newton tells us is that he initiated a Report from the Department of Health which was distributed to Councillors on the 9th of September and the 28th of October 2010. The question now is whether a certain Councillor has played with the truth and if they have then you Glen Eira are a joke.
April 4, 2011 at 8:50 AM
There you go again – not reading what’s under your nose and obviously not understanding a single word. What’s being said has got nothing to do with the Health Dept it’s about the scientific report that made specific recommendations cos the place does have risk associated with it, and it just sat around for weeks and weeks with noone knowing about it and when it did at long last get to audit committee they did bugger all. That’s what all this about and whose covering up for who and how things were done as opposed to how things should have been done.
April 4, 2011 at 12:12 AM
This is not a go at Frank, it is against all the Councillors, but I want to make sure I have my facts right first.
Newton doesn’t answer a question at a Council meeting claiming he had no prior knowledge or has been ambushed or what ever you want to call it.
The Councillors then complain carrying on like pork chops because the question was taken on notice and they assume Newton is working out a better answer can be “crafted” at a later date.
Well if this isn’t “pot calling kettle” I don’t know what is.
The Councillors are masters at this craft, none better than the “gang of four”.
If you are all going to jump up and down on Newton that’s fine, but jump up and down on the Councillors too.
Lets play by the same rules.
I personally have been coping this crap from them for the last four years, so don’t talk to me about “prior notice questions” and “taking questions away and fabricating better answers”……bit rich I reckon.
If I have read this wrong I’m happy to be corrected.
April 4, 2011 at 8:42 AM
Is it my imagination or am I dreaming. Did Frank in his prepared paper to the Audit Committee mentioned Reports Council had received on two occasions in September 2010 and November 2010 and yet he leaves this out in his gutless ambush of the CEO.This is deliberately overlooked by you Glen Eira and is vital because it questions the integrety of the Councillor. Explain to all of us why he ambushed the CEO with his one sided questions at the Council meeting, denying the Community an opportunity to hear the answers, as the questions were asked.I put it to you he did this deliberately.Let’s see if he has the ball’s to speak publically tommorrow night? He will not because this will give the CEO a right of reply.Come on Frank. Show some courage.
April 4, 2011 at 2:38 PM
Get your facts right. There’s nothing in Newton’s response that verifies or even suggests that the info gained from the Dept of Health were reports – especially the second one mentioned. For all we know, maybe he simply rang up his mates and got them to put down a few choice sentences that he’s then used? The second one was written in 2007 and certainly not in response to any request from council.
Your next blunder is the use of the word ‘ambush’. Councillors ask officers questions without notice all the time. That is their right. The Newton/Lipshutz engineered policy of ‘no surprises’ obviously overlooked this little loophole and so it should. If officers are holding information that is vital for decision making then councillors need to make sure they ask, understand the information and that the information is dead accurate and not the kind of dissembling and bullshit that is in Newton’s response. He could have answered the question on the night anyway if he chose. But by putting it in writing he has had the time to carefully conceal whatever he wants. He’s a bureaucrat after all and when it comes to putting things down on paper he makes damn sure that every single syllable reads to his advantage.
Sounds like you favour secrecy above good government anonymous. That way all the stuff ups, all the back room deals and all the waste of public money is buried and hidden from public view. That’s what happens at this council and it is high time it was all exposed.
April 4, 2011 at 11:06 PM
Frank himself used the word Advice.It was obviously written advice because it is quoted from. If you want to argue over semantics then I am happy to alter the word to Advice.As to the use of the word ambush I am happy to call his action as a gutless cowardice act and lets see if he has the gonads to speak to the issue on Tuesday giving the CEO a right of reply.
May 4, 2011 at 4:22 PM
thanks for reading…This blog is paid for sponsored by Penhalluriacks Hardware ……the man can do no wrong in these bloggers eyes…only others…