At the Special Council Meeting of 3rd April, Lipshutz moved a motion which stated in part that officers provide:
‘all necessary and all relevant documents related to the mulch facility including, but not limited to, the report conducted by Noel Arnold and Associates’.
Of course this represents an entire watering down of the original Forge motion which asked for ‘all test results’ and lapsed for want of a seconder. Lipshutz’s motion also included the wonderful weasel words ‘necessary’ and ‘relevant’. Who is to decide what is ‘necessary’ and/or ‘relevant’ remains a moot point. However, the word ALL would imply that at least ostensibly, Lipshutz is asking for documents that either (1) have not previously been made public, and (2) will clear up the question of the mulch facility and its ‘safety’. That should include ‘test results’.
If we are correct in our interpretation, then this same councillor’s statements at the last Council Meeting – only a week following the Special Council Meeting – are quite extraordinary. Lipshutz claimed that Penhalluriacks’ questions were ‘improper’, that he was seeking the same information that his FOI application was geared towards, and that the questions were critical of officers. Hyams joined in later by applying the word ‘bullying’.
Thus we have a council that has double standards and what’s good for the goose is obviously not that good for the gander. When Lipshutz can move a motion requesting ALL documents that are ‘necessary’ to clear up the mulch farce and then turn around and accuse Penhalluriack for basically asking the very same questions, then we’re in major trouble over governance.
It’s also interesting that Lipshutz makes the claim that Penhalluriack is after identical information to his FOI request. Given that the content of these documents were never made public, then how does Lipshutz know that what Penhalluriack was asking for is contained within those documents? Or could it possibly be that being one of the ‘chosen’, he has access to ‘confidential’ information that is not distributed equally to all councillors and thus represents another breach of the Local Law?
The continual abuse of meeting procedures, Local Laws and councillor conduct is mounting up. It is also time that councillors with a shred of decency put a stop to this continual abuse by speaking up in public. Silence is consent and when, as the saying goes, good men do nothing then this allows tyranny to flourish.
Glen Eira Debates 
April 12, 2012 at 12:57 PM
can anyone see if the fence replacement by the MRC by end of April is still on the Glen Eira council website. I cannot see it
April 12, 2012 at 1:30 PM
Follow this link to all relevant documents: http://www.gleneira.vic.gov.au/Page/Page.asp?Page_Id=1817
April 12, 2012 at 5:52 PM
The Agreement was ratified by Council at its meeting of 27 April 2011, and supporting documentation appears in the Minutes of that meeting. Even if convenient URLs disappear, the details can be found in Item 9.12 of those Minutes.
Those same Minutes disclose that Crs Tang and Magee both declared a Conflict of Interest over the Item, under section 78B of the Local Government Act, because they were Trustees of the Caulfield Racecourse Reserve Trust. This may help to illustrate the madness that has infected Glen Eira. 78B(3)(b)(i) specifically says a person does *not* have an indirect interest because of a conflicting duty if the person only holds a position in a not-for-profit organisation for which the person receives no remuneration and the person was appointed or nominated to that position by the Council. So what is the status of the Trust, and what is the remuneration that Crs Tang, Magee, and now Forge receive for being Trustees nominated by Council?
April 12, 2012 at 6:07 PM
Here is the Newton “directive” from the February 2006 minutes –
Members of the Trust are not appointed by Council. They are appointed by the
Governor-in-Council. In effect, this is the State Government of the day.
Council is not “represented” on the Trust. The duty of a trustee is to the Trust. A
trustee, who is also a Councillor, is under a legal obligation to make Trust decisions
in the best interests of the Trust. In practice, a Councillor will be able to bring
information and advice from their Council role to assist the Trust in its deliberations.
Nonetheless, a person who is both a trustee and a Councillor may from time to time
be placed in a conflict of interest on an issue involving both the Trust and the Council
and will need to resolve that conflict of interest – usually by absenting him/herself
from the decision-making on that issue by either the Trust or the Council or both.”
April 12, 2012 at 6:15 PM
PS: we also invite readers to revisit an old post where we discussed trustees, ‘winky pop’ and conflict of interest – as well as the difference between Port Phillip’s interpretation of the judgement and the creation of their special committee and Glen Eira’s restrictive implementation. See:
https://gleneira.wordpress.com/2010/12/01/c60-winky-pop-conflict-of-interest/
April 12, 2012 at 9:32 PM
Andrew Newton’s advice in 2006 to a bunch of neophyte councillors borders on the ridiculous. Under his interpretation of the intent of Parliament, effectively nobody could be both a councillor and Trustee. What it *does* reveal is that the CEO had, and still has, a duty to keep councillors informed about changes to the relevant legislation. 2006 is a long time ago. Since then, Parliament has made 28 further attempts to explain to the Newtons of the world what their intent is.
I unwittingly quoted from version 100 of LGA, which made very clear Andrew’s advice was to be disregarded as it was not the intent of Parliament. We’re now up to version 110 in the legislators’ continuing battle with bureaucrats. Its even more explicit. 78B(3)(ba): “A person does not have an indirect interest because of a conflicting duty if the person only holds a position, with the Council’s approval as a representative of the Council, in an organisation for which the person receives no remuneration”. So now the only remaining question is whether our 3 councillor representatives receive remuneration for being Trustees. I said madness, I still say madness.
April 12, 2012 at 9:34 PM
They do not receive a stipend, and as noted in our earlier post, since the amendment to the legislation, “gifts” are now also excluded from the conflict of interest parameters if under $500. It’s also worth noting that on at least one occasion Magee did not declare a conflict of interest when the issue involved the MRC. Tang has continually declared a conflict of interest. So, why can one councillor be perceived in having a conflict of interest and another not on an identical issue?
We could go even further and ask whether there is in fact a real conflict of interest when Magee was the councillor facilitator for the centre of the racecourse planning conference?
April 12, 2012 at 2:57 PM
I’m pretty sick of the mulch story. I’m not sick however of what it means for the governance and cover ups that continue in Glen Eira with the able assistance of the gang. It’s a damn sick place when residents and councillors can’t trust the information that’s put out by officers and when public questions repeatedly get the brush off. Secrecy is okay if you’re ASIO and dealing with national security. It’s not okay when every second issue is decided in secret. Reprobate said it plain and clear. We’ve got a real culture problem and it stems from 2 men – Newton and Burke.
April 12, 2012 at 3:45 PM
that is why I am most interested to see what happens with the fence issue by the end of April. Will those documents disappear from the Glen Eira council website as if there was no agreement ever made (another cover up). I am really surprised the Queens Avenue fence is marked to be removed in the next 5 years. They have absolutely no intention of doing this.
April 12, 2012 at 8:35 PM
Better still, parts of the fencing have to be removed and replaced by palisade or another permeable fence within the next 15 days. This is set to become not just a local issue affecting the gang (and Pilling) who voted in c60 but also a state issue with Southwick jumping on the “agreement” and federally with Michael Danby being vocal against the MRC and C60. Can’t wait to see how this one explodes!
April 12, 2012 at 9:10 PM
Is it possible that all Councillors were given all the information in question in a Confidential Forum and that Frank is trying to make it public
April 12, 2012 at 9:31 PM
No way for two reasons. If the information was available to all councillors then Lipshutz would have left in the phrase “all test results”. Then if you remember the final Noel Arnold report only went to councillors on Penhalluriack’s insistence and it wasn’t the original version. How carefully they read it is their problem as Magee admitted to having missed the bit about the necessity for the mist spray. Forge’s original motion makes it clear that not all the information has been produced. If it was then there wouldn’t be the FOI case. You fight and spend ratepayers money on expensive lawyers when you’ve got something to hide and not just on a matter of principle. I’d lay you odds that there’s been hanky panky going on with all this for sure and Newton’s scared stiff he’s been caught with his pants down.
April 12, 2012 at 9:47 PM
If readers have the time and energy, we recommend a full reading of the ‘Winky Pop’ Supreme Court Decision. See: http://www.austlii.edu.au/au/cases/vic/VSC/2007/468.html
April 13, 2012 at 1:44 AM
The whole Caulfield Racecourse Trustee come Glen Eira Council personel iz an absolute farce. The Winky Pop is just another way of removing voting power from these councillors. i am sure committeemen/women from Collingwood Football Club who represent thisw sacdred team at the AFL meetings come back and report recommendations of the league and move motions re league too and actually vote on them.. If it didn’t work this way and it worked like the secret organisations of Glen Eira Council and the Caullfield Racecourse Trustees then the AFL ould be in a shambles too.
April 13, 2012 at 9:24 AM
The AFL is run by a commission made up of people approved by the clubs. They ditched the old rep. style set up as the clubs were always looking after themselves first and not the overall league. Not unlike the commissioners that preceeded the formation of the Glen Eira Council.
April 13, 2012 at 10:38 AM
Colin you have now read VCAT”s decision.Go away.
April 14, 2012 at 12:07 PM
The VCAT decision is based on the 19th century premise that its in the public interest for the public to be denied information since they could be “confused” or it may lead to “mischief”. Smithers J did affirm that FOI doesn’t provide for a document to be exempt by way of purely factual information. Based on his ruling, the disputed documents don’t contain factual information. There is a disconnect between claiming a document is exempt because it doesn’t contain factual information, and then claiming that somebody is trying to get backdoor access to a document by asking factual questions. Colin, or anybody else, should be encouraged to participate actively in civic life. See LGA 3D(2)(f) and Councillor Code of Conduct 2.3(f).
April 13, 2012 at 10:58 AM
Why if we tell our councillors and the officers take orders from them have two more fences been erected on the eastern boundary of the racecourse in order to prevent runners from running arounfd the outrside as they can do outside the Royal Botano9oc Gardens and the Carlton Football gtround.
April 13, 2012 at 11:17 AM
they will need to run on the concrete paths and injure themselves instead of the softer grass
April 14, 2012 at 7:10 PM
The Minutes of the meeting held on 2 Nov 2011 documents the officers’ recommendation and reasons. Moved and seconded by Crs Lipschutz & Hyams, adopted in a split decision. Much more disturbing than Council voting to devote resources to obstruct pedestrians is the utter failure to plan anything. Option 2 talks about the MRC’s need for appropriate vegetation and that it could be planted “now” [meaning 6 months ago] to ensure it is well-established by 2016. The MRC hasn’t planted anything since the decision in the 4m buffer they have between their outer rail and the fence and have no plans to bring the rail in if they need a wider buffer. There won’t be a jogging track around the outside with the current decision-makers remaining in their respective positions of power. BTW even “5 years” is whimsical. That’s only a “guideline period”. And while “consultation” is supposed to commence within 18 months of the Agreement, there is no evidence it will happen. Just why 18 months should be allowed to elapse before doing anything has never been explained.
April 16, 2012 at 7:36 AM
excellent post Reprobate. I think the track has been raised over the years this may be a part of an issue. If they lowered it, it would not be as much of a problem for Jockeys coming off into Queens Avenue. Over the years it has been a shocking effort at planting. They plant trees then don’t look after them at all and they die. I noticed a red flowering gum was actually staked with star pickets on the weekend so at least they are really trying to look after it. In previous years the wooden stakes have often fallen down and the trees have not survived.