We’ve titled this post “Newton v’s Penhalluriack’ since this is the crux of what we believe to be at the heart of the entire matter. Whatever the personalities of these two individuals, whatever their differences of opinion, we do not consider the expenditure of $271,000 (and rising) on “legal advice” by this Council is justified under any circumstances. The amount that has been spent by council is nothing short of scandalous.

The running costs were revealed as a result of a public question, which we will present once the minutes come out – together with Council’s response and Penhalluriack’s ‘Right of Reply’. First however, the following facts need to be made clear:

  • When a councillor is sent to a Councillor Conduct Panel (CCP) the legislation states that there is to be no legal representation. It is intended to be ‘secret’ and ‘informal’. The findings of such a Panel are then to be included in Council Minutes. Ostensibly this sounds reasonable, except that in Glen Eira’s case ‘legal advice’ had already reached thousands and thousands of dollars (ie O’Neill Report and countless lawyers on forwarding the documentation to the CCP) prior to any actual hearing. The same privilege is not afforded to the defendant (respondent)
  • The members of such Panels are assigned from a list compiled by the Municipal Association of Victoria (MAV). Many of these members, if not all, are former local government bureaucrats, including former CEOs. Hence it is plausible to suspect that the culture, mentality and ‘old boys system’ may be well entrenched. In a recent case at Hobson’s Bay that ended up at VCAT for example, the MAV selected member was challenged and had to remove himself from the case since it turns out he was the previous CEO of Hobson’s Bay!
  • When a CCP is held, the 2 MAV members are paid for by council. Their fees for a single day (in 2008) totalled over $1500. Again, such hearings may go for many days.
  • The CCP may do one of two things – order the case to VCAT for consideration of ‘serious misconduct’, or make its own findings. The defendant may request that the case goes immediately to VCAT. Legal representation is permitted at VCAT.
  • Under all jurisdictions, the principle of ‘innocent until proven guilty’ and ‘natural justice’ must apply. The current system has many flaws we believe, as outlined above – in particular the ability of council to enlist legal advice prior to any formal allegations yet not have the accused afforded the same resources. This goes against the fundamentals of our justice system. It should, if justice is to be seen as truly ‘even handed’.
  • Finally it’s worth questioning whether Council (and hence ratepayers) have actually received ‘value for money’ from all this legal advice? Allegation after allegation has been whittled down to just four. The main substance of the O’Neill report has bitten the dust big time and at the first VCAT hearing Council was ordered to go away and reduce its mess of allegations into something that was succinct, logical, and presentable. We assume that the lawyers were paid regardless of these deficiencies! Now we face the situation of more lawyers and the potential for a 7 day hearing at VCAT. How much will this cost? And for what?
  • Should any blame be assigned to councillors for their role in all this? Charged with dealing ‘prudently’ and ‘responsibly’ over council finances how on earth can they ever justify this kind of expenditure on a case that really boils down to Newton vs Penhalluriack?