Questions about the legality, process and cost of Douglas Shire Council’s decision to suspend the Daintree ferry contract and to explore a bridge remain unanswered… but will naturally surface given that this was the biggest contract ever awarded by the Douglas Shire.
The Daintree ferry is being run by a private company ‘XYZ’ who successfully tendered for a long-term contract awarded by Council resolution on December 3, 2019.The contract was suspended by Douglas Shire Council by a Mayoral minute in April 2020. Existing traffic arrangements will expire on 30 June 2021.
The risks here are substantial. Council could be responsible for compensating ‘XYZ’ for the loss of a long-term contract. It could be worse yet – added to the possible compensation cost, the successful tenderer could walk, and the Shire is left with no ferry come July next year. There certainly won’t be a bridge by then.
There are three aspects to the legality of the Council decision initiated with a Mayoral minute.
DouglasNews.Network put the question to Council and received no response beyond a letter advising that DouglasNews.Network’s earlier receipt of “media rights” to the Council had been revoked.
DouglasNews.Network notes that this action has minimal impact. Legally, the media and the public both enjoy the same access rights. It does mean however, that Douglas Shire Council can selectively send media to compliant outlets before they are published on the Council website. DouglasNews.Network is following up this matter of public interest.
Should there have been a notice of motion to rescind the Council decision?
Douglas Shire Council Standing Orders and the Local Government Act require a notice of motion for a previous decision to be rescinded:
Standing Order sect 13: A resolution of Council may not be amended or rescinded unless a notice of motion is given in accordance with the requirements of Section 262 of the Local Government Regulation 2012.
This was not performed.
No answer has been provided to the public concerning the legality of using a Mayoral minute, effectively catching Councillors by surprise.
Could the Council decision be rescinded legally?
Case law and precedent holds that a decision can only be rescinded if it has not been implemented or substantially commenced.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 was therefore aware of the decision. As time is of the essence, for building and commissioning a new ferry, the tenderer XYZ would very likely have begun work on design and construction to meet the July 2021 deadline.
In the view of the DouglasNews.Network Editorial Team, a Court is likely to say the decision has been implemented and could not be rescinded, should it be challenged.
The next issue is the question of the use of the Mayoral minute and subsequent 3:2 decision of Councillors to suspend the contract, rather than cancel it. Does this relieve Council of legal and financial liability?
Council has given no precise time-frame, only releasing its consultation plan and an in-house Options Paper limited to estimates of the cost of a low-level bridge on the assumption it will be funded by State or Federal government.
Given the tenderer no longer has any chance of delivering the contract on time, is this effectively cancelling the contract by default?
There is also the question of process – why did the Council staff or CEO not sign a contract when instructed to do so by the former Council on December 3, 2019?
All this when the former Council achieved thorough public consultation, with the findings that only 5% wanted a bridge and half of respondents, only if the ferry queue problem could not be solved.
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