Editorial: Not silenced, just censured

THERE seems to be a pattern that whenever I speak publicly as a Councillor, I am whacked with new Code of Conduct (COC) breaches, which are then referred to the Office of Local Government (OLG).

At Monday’s Council meeting the Councillors voted to send through another two COCs against me to the OLG. Basically, censured means, Council are referring me to the OLG. What were the COCs for? You can read the details below in, “Complaints referred on Monday night.”

Have I breached Council’s Code of Conduct? Yes. Will I continue to? Highly likely. Why am I breaching the Code of Conduct? I’m happy to explain:

The law, both state and federal, protects the rights of Australians to voice dissent and engage in public debate, including criticism of the government. However, the Council’s Code of Conduct states Councillors are not allowed to debate anything in the media. Council’s Code of Conduct is meant to reflect the letter and the spirit of the law. I do not believe this part of their Code aligns to Australian law, it might align to China’s laws, but not ours.

So that is one part of the Code I fully intend to continue to breach. Is Council’s Code the Law? No. Does the law support me to participate in public debate? Yes. Am I a democratically elected representative, whose job it is to represent the interests of residents, keep them informed, and often voice dissent and debate? Yes.

In a recently published letter, signed by all Councillors, except me, it states “The Code of Conduct is derived directly from the Local Government Act 1993 and is therefore law.” This circular reasoning made me laugh out loud! Reality check: it’s called the Upper Hunter Shire Council, not the Upper Hunter Shire Parliament. The Council can make up as many Codes as it likes, they are not passing law.

I also don’t agree with or support the Council’s Code for video-conferencing. Both former Cr Abbott, and I believe any Councillor should be able to attend a meeting, and perform their duties, in person, via video or audiolink. We do not believe other Councillors should have the right to vote on whether a Councillor can attend a meeting via video-conferencing, before each meeting. Laws don’t prevent Councillors from attending a meeting via video-conferencing, so why should this Council be able to prevent us from attending? Notably, Mayor Collison voted against Cr Abbott attending her last Council meeting via video-conferencing, stating he didn’t think “family was a good enough reason”. A few months later, when I had car trouble in Sydney, the Mayor did not accept my application to attend via audio-visual. I believe democratically elected representatives have the right to participate in meetings and that democratic right far outweighs any policies Council may make up, or the whim of individual Councillors on the night. 

I am quite certain I will continue to receive Codes of Conduct; in fact, this editorial will probably prompt more. Will the Office of Local Government find I have breached the Council’s Code of Conduct? Probably. Will it stop me from performing my elected duties? Possibly, because I believe the end game is this: If there are enough Code of Conducts brought against me, the OLG can stand me down as a Councillor, and I am quite prepared for that to happen. I will have the right of appeal and there are laws which support what I am doing, so I will avail myself of that process when the time comes.

Until then, I will continue to take my direction from the residents and ratepayers of the Upper Hunter Shire, an overwhelming number of whom have contacted me to say, “keep goin’ girl!” So, I will. I will continue to speak out when I disagree with Council decisions and behaviours, and continue to keep you informed.

Complaints referred on Monday night:

On November 2, I published Editorial: Last Straw for Cr Abbott, where I detailed why Cr Abbott stood down. I wholeheartedly support the comments made by Cr Abbott and was disgusted by how Council treated her in this matter. I was the other Councillor referred to the OLG, for not handing in a form by a due date, whilst we were on leave.

Code of Conduct complaint details:

• “…publicly criticised Council without utilising the course available to her to make complaints.”
  • Councillors, in fact anyone, is free to publicly criticise the Council. This is supported under Australian and state law.
  • Do you have to lodge a Code of Conduct in order to criticise Council? No.
  • If you do lodge a Code of Conduct:
    • you are not allowed to talk publicly about your complaint.
    • thousands of dollars in ratepayer money is spent investigating the complaint.
    • Council decides if your complaint against them should be investigated.
    • If Council decide they shouldn’t be investigated, then you can lodge another complaint with the Office of Local Government, then they decide if your complaint should be investigated. This whole process can take months and months and racks up a bill for the ratepayer.
  • I merely informed the public of Cr Abbott’s reasons for standing down, and gave my opinion on the matter. I wasn’t interested in lodging a Code of Conduct complaint and nor do I have to.
• She has criticised resolutions of Council with respect to attending meetings by videoconference.
  • Yes, I was critical of how Council manages video-conferencing attendance, and I remain critical.
• She has publicly incorrectly reported that she was not given the opportunity to submit a Pecuniary Interest Declaration form.
  • In my opinion, these are weasel words.
  • Both Cr Abbott and I were on leave when the form was sent, and the form was due while we were both still on leave.
  • Both Cr Abbott and I stipulated we would not be checking our Council emails, and for anything time sensitive, they could phone, send a text-message, or use our private email. Council did not avail themselves of these options and instead only sent it to our Council email.
  • Once I became aware of the email, among 600 others, I filled in the form and submitted it within the hour. I further sent the email to Councillor Abbott’s private email for her to do the same. So I suppose we did have the opportunity to fill in the form, after the due date, and after we had already been referred to the OLG, which I did. I also respect why Cr Abbott decided not to, and stepped down. The allegations I am facing, would also apply to Cr Abbott, who spoke out and was critical of the same things I have raised, so I am glad she now doesn’t have to deal with this.
• She has been critical of Council for meeting its statutory obligations under the Local Government Act in respect of reporting her failure to lodge a form on time.
  • I am not critical of Council reporting our failure to lodge the form, while we were on leave, to the OLG, in fact I voted for it to be referred to the OLG.
  • I am critical of Council not phoning, texting, or sending the form to our personal email, before the due date.
• The article was likely to bring Council or Council officials into disrepute.
  • I reported on what happened, and I was critical of Council’s actions. Any “disrepute” I believe is due to Council’s own actions.
• Failed to uphold and represent accurately the policies and decisions of Council including the decision to govern the attendance at Council meetings by video-conference.
  • I won’t be upholding and representing Council’s stance on this matter, as I don’t agree with it. I will be upholding and representing my own views on this as a Councillor, which I am supported by law to do.

On December 19, I published Editorial: Council Meeting December 2022 and I reported that I had requested the financials for the Early Learning Centre. I requested the financials during a closed Council session, but I did not report on any information which was confidential.

• Council alleged a long list of breaches in relation to disclosure of confidential information.
  • Despite their allegations, Council has at no stage produced any evidence that I have disclosed confidential information.
  • Under the law, ALL Council information is on the public record, and only very specific information meets the legal test of confidentiality. Even then, most confidential information dealt with in Council, becomes publicly accessible after a decision is made.
  • To discuss a matter in closed Council, it must meet the legal test of confidentiality, otherwise it must be discussed in open Council. You can’t simply place a matter into closed Council, and it magically becomes confidential information.
  • This distinction is an important one, because it prevents Councils from abusing closed Council sessions, and discussing matters they would prefer the public not to know about, even though the public are entitled to know.
  • Interestingly, one of the Council Codes prevents anything discussed in closed Council from being discussed outside of closed Council. It does not confine itself to confidential information, but rather any information. This I believe does not adhere to information law.
  • Have I ever breached this Council Code? Yes. When I published the story, I reported I had requested the financials for the Early Learning Centre during a closed Council meeting. Are the financials confidential? No. Does a request for the information meet the legal test of confidentiality? No.
  • Have I ever disclosed confidential information, as the Council has alleged? No. Has the Council provided evidence I have disclosed confidential information? No.

Kind Regards,

Cr Elizabeth Flaherty

All of the above are my perspectives, opinions and beliefs as a Councillor on the Upper Hunter Shire Council, are my own, which may not (in fact probably don’t) reflect Council’s position, but which as an elected representative I am supported in law to freely express.