Delahunty moved the motion to accept the Code of Conduct with ‘the deletion’ of those clauses related to ‘political parties’ and the new clause 4.8.3 (ie the new ‘gag’ clause – our term). Lobo seconded.

DELAHUNTY: Claimed that the gag motion was a result of ‘some actions that I took’ regarding Elsternwick Park such as ‘releasing letters from VicTrack’ and ‘letters from the member of Caulfield’ and council letters ‘to the media’. She felt that all this information was available under FOI. With the consequent pressure that was exerted there was an ‘agreement’. Said that ‘the outrage’ that followed was ‘in stark contrast to the lack of outrage’ and ‘lack of even discussion’ and ‘inaction from our representatives’ about Elsternwick Park. so ‘here we are’ attempting to ‘insert some reactionary and dare I say conservative’ to try and ‘stop that’. Quoted the ‘guide to ethical decision making’ and asked whether her actions were ‘lawful’, ‘consistent’ with policy and the code of conduct. All answers were ‘yes’ and looking at the ‘outcomes’ it was a win for the community. ‘I didn’t talk about’ people’s individual opinions nor what ‘was said behind closed doors’. ‘I gave information that was freely available under other means’ as a form of advocating for the park.  Said again that ‘the outrage towards my actions are in stark contrast to the lack of outrate’ and ‘inaction’ so ‘where are our priorities here?’ It therefore becomes ‘a litmust test for me’ whether the clause should be included. It represents a ‘ridiculous reactionary stance’ to what she believes is ‘ethical decision making’.

On the political parties clause Delahunty stated that ‘I don’t even know’ what it means and ‘can’t support something I don’t understand how it would be applied’. The code is supposed to ensure ethics ‘which is covered in other sections’ so there’s no need for this inclusion. Said that if she said that Southwick dragged his heels on Elsternwick Park would this be ‘a statement of fact’ or a ‘political’ statement. If Okotel gets up and mentions the hard work ‘is that a political statement’ or an ‘opinion’? ‘We have to act impartially – it’s in the Local Government Act’ so unnecessary. Supported other changes.

LOBO: started with personal biography and heritage (Goan, educated by Jesuits, etc) so Code of conduct ‘is important’. Called the current code a ‘soft’ version of ‘dictatorship’. Said ‘I am losing confidence in this country’ and didn’t think ‘it was true’ that ‘we are a democratic country’. When someone would tell him that this is a democratic country he would ‘tell them to piss off’. Went on to talk about ‘ethics’ and how this ‘comes out of family values’, ‘good conscience’ and ‘brains’ and ‘partnership’ and not ‘this garbage’ and it’s ‘not a democratic country’ ‘particularly this clause 4.8’ just because someone may ‘have done something wrong’ it’s an attempt to ‘put it on all of us’.  (yelling at this point). Hyams then told Lobo to ‘calm down’.

LIPSHUTZ then moved an amendment which inserted into the clause ‘public interest’. Delahunty didn’t accept the amendment. Okotel formally seconded the amendment. Lipshutz then said that he was overseas when the matters about Elsternwick Park were raised. Said he doesn’t know what ‘went on and frankly I don’t care’. What he’s concerned about is the ‘councillor group’ and since there’s ‘no opposition’ they have to ‘work as a group’. Claimed that the clause didn’t have anything to do ‘with one councillor going off and showing documents’ outside. Delahunty should have come to the councillor group. Said that as a councillor they get confidential information and information that is ‘half-baked’ and what they are ‘trying to do’ is that for the public they present ‘one voice’. That doesn’t mean that people can’t talk about things but when documents come into council it should be ‘approved’ by the councillor group to go out. On Lobo’s statements said that he ‘wasn’t sure’ whether anything he said has ‘to do with the Australian people’. The clause doesn’t hinder democracy but instead ‘makes sure we’re a team’. On the political party clause there ‘are people here’ who are aligned and that’s okay but as a group they ‘have to work together irrespective of our party allegiances’. Everyone ‘brings to the table’ their own ‘ethics, their own views’ but ‘working as a group’ political party purposes shouldn’t enter. The clause ‘makes us work as a team’.

OKOTEL: said that when elected they were elected to provide leadership and to make decisions in ‘as a group of nine councillors’. The objective of the code of conduct is to ‘facilitate that’ and the rules are there to ‘ensure that we are able to work together’ and without rules ‘people may not understand their role’ or ‘how best to interact with one another’. The two clauses in contention ‘will assist that’. Clause 4.83 is important because information can ‘be presented to help us in our decision making process’ so that when documents are coming in and out that these aren’t ‘released too readily’. It ensures ‘that we are able to function productively’ and ‘work together as a group’ and ‘make good decisions and not shoot ourselves in the foot’ when in negotiation.

Pilling then asked for clarification as to what the amendment actually was and whether it was the inclusion of the words ‘in the public interest’. Hyams confirmed that this was correct.

Lobo then asked Okotel if she could ‘tell me in a few words what is a document and what is a letter?’ Went on to say that MP Miller had sent a letter to Hyams to support a development at Virginia Estate, so he wanted to know what the difference was ‘between the two documents’.

OKOTEL: said that if Lobo was looking for a ‘legal definition’ then he should look at the Macquarie dictionary. She hasn’t got a dictionary in front of her but refers Lobo to that.

LOBO: (Hyams again asked Lobo to ‘calm down’ to which Lobo said ‘I can sing’)Lobo then asked  Okotel about smart metres and ‘Cr Esakoff has got a box full of complaints’. Went on to say that ‘some people have complained that they cannot reach you’. Said that council has written to Michael O’Brien about the metres and he had replied to council. He asked if he ‘shouldn’t show this letter to the press’ .

Lipshutz then interrupted with a point of order. ‘That’s not a question. It’s a debate’. Lobo tried to continue talking and Hyams informed him that when a point of order is raised the speaker must be silent. Lipshutz said that Lobo’s comments ‘were not the point of the’ item.

Delahunty then made a ‘point of order on a point of order’ saying that ‘that’s not the grounds that a point of order can be considered upon’. Lobo yelling out ‘we have to stop this nonsense’. Hyams ruled that it was in relation to the comments that Okotel had previously made. She then asnwered –

OKOTEL: Said that on the Minister’s letter she did let residents know the Minister’s and her ‘position’

PILLING: then said that he thought the reference to political parties ‘was too wide’. On 4.8,3 he supported ‘the vast majority of wording’ and would change the last bit about councillor group ‘approval’ to ‘councillor group being notified’. Foreshadowed his own amendment if this didn’t get up.

DELAHUNTY: thought that the inclusion of the words ‘contradicts the guide to ethical decision making’ and that there are ‘contradictions’ to other clauses and other bits of legislation such as the Local Government Act.

MAGEE: was against the amendment. Said everything they get is ‘written’ and rarely verbal. Therefore he would ‘have difficulty with this’. On Virginia Park he said that Miller knew more about what was going on than ‘council did’.  Said that when a ‘media organisation’ asks for ‘detail’ ‘what do you say? I’m sorry, I’ve got to go back and ask everyone?’ Said a developer writes to the Minister and then the local member and the result is that a resident ends up with a 3 storey building looking into his back yard ‘without giving him the right to go to the minister’ and without the right to go to council.  Saw no problem with giving documents out and gave an example of the MRC writing and he being gagged so he would ‘have great problems with that’. Said there ‘could be a situation where 5 or 6 councillors decide what is important and what’s not important’. Said that they’ve got a good system already and therefore this isn’t necessary.

HYAMS: said he ‘preferred’ the clause in there because of previous council where documents were leaked. When people write to council ‘it’s better for all us’ and for the community that ‘they can do so in confidence’ and not ‘used against them’. If it did happen to be ‘in the public interest’ then like the Magee example on the racecourse he ‘doubts’ that council would say ‘go jump’

LOBO: said that with this clause it amounted to ‘doubting the integrity’ of people. Esakoff then said she’s going deaf and for Lobo to tone it down. Lobo apologised and said he would bring ear plugs ‘next time’. Thought the clause attacks ‘my integrity’ because he’s been a banker for 27 years and at not stage ‘has a finger of mine been chopped’. Didn’t believe that the clause ‘should be applicable to grown ups’. People have to be treated with respect.

Amendment put and LOST. Back to Pilling’s foreshadowed amendment.

PILLING: included the terms ‘public interest’ and ‘councillor group notified’. Sounness seconded. Delahunty then asked Burke whether anything has ever been so ‘weighty’ that he couldn’t ‘advise councillors’. Burke  couldn’t but also said that there was no time when he didn’t feel ‘confident’ to raise something with councillors. Delahunty then refused to accept the amendment.

Pilling said that he saw the clause like anything else that was ‘discussed in assemblies’ and that it was all about ‘working with the councillor group’. Thought there was some ‘responsibility’ on councillors so this was a ‘compromise’ that would capture the ‘intent’ of the clause but not leave it completely in the hands of the ‘councillor group’ by being ‘notified’ rather than ‘approve’. It therefore ‘strikes the right balance’.

SOUNNESS: thought that councillors ‘should be sensible’ about this. Said he saw both sides where public interest was important but also that the ‘opportunity’ to phone other councillors and have ‘a chat’ was important. The outcome would be ‘successful’ because ‘councillors would talk to each other a lot more’. ‘I want us to work better as a team’. Said that the staff ‘give us frank and fearless advice’ and that’s important.

Hyams then turned to Newton and asked him if he felt that this clause in any way contravened current legislation. Newton said that ‘in my opinion’ it doesn’t.

Amendment put and passed unanimously.

The amendment then became the motion and was carried unanimously.