Douglas Shire Council / People-Free Public Consultation

Douglas Shire Council holds secret meeting to decide upon public consultation.

Before Douglas Shire Council at tomorrow’s Ordinary Meeting is a recommendation for another round of public consultation concerning whether a bridge should replace the Daintree River ferry.

The Report concerns the actual options, presumably about where it would be built, how much it would cost, state and federal approval requirements etc, has been classified as confidential and will be discussed in closed session.

It is not clear why consideration of the actual Options Report is to be held in closed session. 

Agenda papers state:

9.1. prejudicial matter s275 (1) (h) local government regulation 2012 – Daintree river crossing options report

…but give no reason why it would prejudice any party.

The consultation proposal before Douglas Shire Council says the Report will be released two weeks before the consultation period which will itself run for three weeks and is proposed to begin mid-September 2020.

Mayor Michael Kerr and CEO Mark Stoermer have been asked to explain why the Options Report is confidential but at time of publication, have not replied to our request.

Cr Abigail Noli said she could see no reason why the Options Paper is confidential but was unable to say anything more as the issue is listed for closed session discussion.

Councillors have been instructed that anything discussed in a confidential session must not be discussed outside the meeting, meaning Councillors are gagged and risk being breached.  Whether this precludes Councillors from seeking their own legal and financial advice is open to interpretation.

While the public consultation period is only three weeks, Council’s decision on the matter will not occur till December.

The new round of consultation is described as Stage 2, the Report before Council states 

“….the initial round of consultation was focussed on what the community wanted by way of an enhanced ferry service, and the feedback received was used to prepare tender specifications for a ferry service. It did not include information about the costs involved in either operating a second ferry or building a bridge.”

Previous Mayor, Julia Leu, said the initial round of public consultation was thorough and exhaustive with only 5% of submissions proposing a bridge rather than ferry.

The previous Council made a resolution on December 3, 2019 to award a new contract for a two ferry system, instructing the CEO to execute the contract and made public announcements with press releases about the new contract.

However, the CEO never executed the contract, a fact none of the Councillors were aware of at the time. Ms Leu says Councillors all assumed it was executed so the successful tenderer could deliver on time.

No explanation has ever been offered for the CEO’s decision not to execute the contract as instructed by the Council.

Once a Council has decided to award a contract and made it public, convention says the contract has been awarded even though it has not been signed.

Suspending the ferry contract and making no decision till December means the successful tenderer has no chance of delivering two new ferries by July 2021.

The legal, financial and future implications for transport across the Daintree are all unanswered but may be substantial.

Appendix: Legal and financial risks

Questions about the legality, process and cost of the Council decision to suspend the ferry contract and to explore a bridge remain unanswered but are certain to surface with a 15 year ferry contract in the balance, the biggest contract ever awarded by this Council.

The risks here are substantial – Council could potentially be required to compensate the successful tenderer for the loss of a 15 year contract. It may be even worse – added to the possible compensation cost could be that the successful tenderer walks away from the arrangement, and Council is left with no ferry in July next year. There certainly wouldn’t be a bridge by then.

There are three major concerning legal aspects of the Council decision initiated with a Mayoral Minute.

• The first is should there have been a notice of motion to rescind the Council decision?

The Local Government Act says that for Council to reverse a decision, a notice of motion needs to be given. This was not executed, and no answer has been provided to the public about the legality of using a Mayoral Minute, effectively catching Councillors by surprise.

• The next question is whether the Council decision could legally be rescinded. The law states a decision can only be rescinded if it has not been implemented or substantially commenced. In this case, a Council decision was made, it was announced publicly and the successful tenderer informed. As time is of the essence, for building and commissioning a new ferry, the tenderer would likely have begun work on design and construction to meet the July 2021 deadline. In the view of DouglasNews.Network’s Editorial Panel, a court is likely to say the decision has been implemented and could not be rescinded.  The successful tenderer has declined to comment.

• The third issue is the Mayoral Minute and subsequent 3:2 decision of Council is to suspend the contract rather than cancel it. Does this absolve Council of the legal and liability hook? Council has indicated it will make a decision in December, 12 months after the original Council decision to award the tender to the current operator and with only six months remaining to design, construct and commission two new ferries. Given the tenderer will struggle to deliver the contract on time when Council finally makes a decision, is this effectively cancelling the contract by default?

There is also a question of process – critically, why did the CEO not sign a contract when instructed to do so by the Council on December 3 2019?