The manner in which our 3 councillor trustees treat the conflict of interest provisions of the Local Government Act, are incredibly ‘flexible’ to say the least. The past 3 council meetings illustrate this perfectly.

On 25th February, a Delahunty/Lobo Request for a Report was passed. Not one of the councillor trustees declared a conflict even though the Request specifically named Trustees as an important component of the motion and their implied role in lease negotiations.

Next comes the 18th March council meeting where ALL 3 councillor representatives declared a conflict of interest and left the chamber. This meeting included the officer’s report from the previous council meeting plus the Magee ‘amendments’.

But to top it all off, at the last council meeting (April 8th) we had the farce of only Hyams and Esakoff declaring an interest but Lipshutz remaining in the chamber, delivering his little ‘update’ on trustee meetings and then abstaining from the vote. Ludicrous, farcical, and totally improper we maintain. Lipshutz’s role is no different to Hyams’ and Esakoff’s as a trustee. If they declared a conflict of interest then so should have Lipshutz. Political expediency it would seem, pays no attention to the finer points of the law and ethical conduct. The fact that not one single councillor questioned Lipshutz’s presence makes them equally culpable in this instance we believe. No doubt all had been successfully ‘arranged’ beforehand and behind closed doors.

Section 78B of the Local Government Act outlines what ‘conflicting duties’ means –

Indirect interest because of conflicting duties

(1)     A person has an indirect interest in a matter because of a conflicting duty if the person

(a)     is a manager or a member of a governing body of a company or body that has a direct interest in a matter;

(b)     is a partner, consultant, contractor, agent or employee of a person, company or body that has a direct interest in a matter;

(c)     is a trustee for a person who has a direct interest in a matter.

(2)     A person has an indirect interest in a matter because of a conflicting duty if the person held a position or role specified in subsection (1) and, in that position or role, dealt with the matter.

Finally, we have the comments of Andrew Newton himself, recorded in the minutes of February 6th 2006

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.

4. Issues

The Caulfield Racecourse Trust has the usual responsibilities of a Trust for the governance of the land. The Caulfield Racecourse discharges most of its activities through a lease between the Trust and the Melbourne Racing Club.

We must also assume that the various resolutions which required council to send off letters to Ministers, Valuer General, Auditor General, etc. have now been sent. As per usual not one word has been uttered as a consequence of these missives. Why haven’t the actual letters been published so that the community knows exactly what is going on? Have responses been forthcoming?