6 June 2016


On 6 June the Mornington Peninsula Shire Council resolved on a split 6-4 vote to adopt a new Councillor Code of Conduct.


Crs Pittock, Rodgers, Fraser and Wood voted against the resolution.


Management first put a draft of the Councillor Code before Council as late as 16 May – barely 3 weeks before it was adopted by Council and 6 months after amending Act received Royal assent on 27 October 2015.


The Code was developed by management and put to Council without the benefit of timely advice from management and timely and reliable advice as to councillors’ legal obligations under the Act. This is management’s responsibility under section 94A (1) (d) and (da) of the Local Government Act 1989 as amended by the Local Government (Good Governance) Act 2015. It is also a contractual obligation of the CEO to Council.


Indeed, the Manager Governance refused such legal advice in an e mail to Cr Fraser on 3 June 2016. Subsequent to the adoption and on 9 June, management refused to review the adopted Code in light of the excellent inclusive template just to hand and provided by the Municipal Association of Victoria for use by all Councils in Victoria.


There are serious reservations about the process, management’s conduct of it, and the contents of the document put by management before Council for adoption on 6 June and subsequently.


As to the contents of the document itself, a number of these concerns are detailed in the Schedule to this document.


In particular, reference is made to the covering report in which management advised councillors that “The principles of councillor conduct are no longer required to be included in the Code of the Conduct as they are contained in the Act.” Yet these very principles appear in clause 5.2 of the adopted Code.  Either the management report or the adopted Code is in error.


Equally seriously, a whole new class of confidential information was introduced by management into clauses 7.1 and 7.3 without any advisory explanation to Council in the covering management report. These clauses to be contrary to, and inconsistent with, section 77 of the Act.


Further, there has been a careless but material alteration by an officious draftsperson who changed a parliamentary reference in the Act from “representative government” to “representative of government” in clause 3.1 in defiance of 160 years of representative government in Victoria.


There are very serious concerns as to the necessity to “rewrite” almost the entirety of the Code when Parliament only required Council to determine what are “necessary amendments” by reason of the amending Act, the form of the adopting resolution itself, the internal consistency and clarity of the adopted Code, its consistency with the Local Government Act 1989 (as amended), and its consistency with Council’s Local Laws and policies – none of which was the subject of timely advice to Council and timely and reliable advice as to councillors’ legal obligations under the Act.


This ought to have been an inclusive process to achieve an inclusive Code; but it was not. A majority of councillors have resolved on this document and required a minority to “sign off” on a patently defective document on prima facie pain of disqualification from office.


It is a fundamental contractual and statutory obligation of management to Council under section 94 A (1) (d) and (da) and provide advice and timely and reliable advice to Council as to councillors obligations under the Act as to these matters and its advice, if it is, that the adopted Code is a consistent, coherent, unambiguous, workable and lawful Councillor Code of Conduct before councillors are obliged to “sign off”. And if not, what is required to make it so.