CRISPIN HULL
Douglas Shire Mayor Michael Kerr has dismissed the no-confidence motion passed by the latest council meeting by a 3-2 vote at as having “no legal status” and that it would have “no effect on the future operation of the council”.
Mayor Kerr was responding to events at this week’s council meeting at which Deputy Mayor Cr Lisa Scomazzon moved a motion of no-confidence in the mayor’s handling of council meetings.
The events reveal deep divisions within council. But at least one councillor, Cr Abigail Noli, hopes that things can improve with the appointment of strong governance.
At the meeting Cr Scomazzon, Cr Abigail Noli and Cr Roy Zammataro said they were unhappy at the way Mayor Kerr had been handling meetings. They said he had used legal and delaying tactics to ensure that their motions were not openly debated.
Mayor Kerr said, “It is extremely disappointing that these councillors have taken aim at me as the chair, calling a no-confidence motion. Their energies would be far better spent looking at their own actions, which have the potential for improvement by further educating themselves to the legislative requirements of putting motions forward and the legally correct terminology required which can happen by workshopping the motions that they wish to present to council.”
Mayor Kerr had sought legal advice about a motion by Cr Scomazzon requiring that the mayor provide more information to councillors about his meetings, particularly those outside the shire, with industry and other state and local governments.
Cr Scomazzon said Mayor Kerr should tell councillors who he met, where, and what was discussed.
At the meeting Mayor Kerr said that legal advice was that the motion had not been validly put. The legal advice was that it was “vague, broad or uncertain”.
He told Douglas News, “In all cases, councillor motions were not heard at each meeting due to their lack of knowledge of the legislation or lack of correct procedure. This was confirmed by legal advice given by King and Co on all occasions.
“As the Chair, I believe that I have a legal responsibility to ensure that the meetings are held in the appropriate manner and that motions brought before the council can legally be heard, voted on, and enacted by the CEO.”
In the past few months various motions have been unsuccessfully put by councillors over several issues, particularly the Daintree ferry.
Mayor Kerr said that on that issue the motion put had not received five “full days” of notice.
He stressed the importance of the legality of a motion because the CEO could not legally act on a resolution that was not legal.
At the council meeting Cr Scomazzon said, in moving the no-confidence motion: “This is directed at the Chair. Due to your unsavoury behaviour to adequately chair these meetings . . . You continually disallow motions to be tabled . . . I move a motion of no-confidence in the Mayor to adequately chair meetings. . . . How much money is spent on legal fees, I have no idea. Motions are put on the table to discuss and debate and we don’t get the chance to do that.”
The motion was passed with Crs Scomazzon, Noli and Zammataro voting for and Mayor Kerr and Cr Peter McKeown against.
Cr Noli told Douglas News that it was clear that a majority of council were unhappy with the way things were going.
She thought it was not just the conduct of meetings, but the lack of progress on keys issues.
“The Daintree ferry is a shambles,” she said. “Millions and millions have been spent and we don’t know whether the old ferry will last until a new one comes.
“A lot of time has been wasted on questions of whether the Council would buy the QT pool or the Bally Hooley railway which were never going to happen. . . . . Water security was another one of the things that had not progressed enough in the past three years.
“There is a systemic chronic disease in council. People do not realise how unhappy councillors are.”
She agreed that the no-confidence motion had no legal effect, but “it demonstrated the ill-feeling within a majority of Council”.
“The standing orders for Douglas do not allow Cr Kerr to dismiss a motion and not allow democratic debate to occur. Nor do the standing orders say there must be 5 days before submitting a motion. The standing orders were adopted by a council resolution of which Cr Kerr accepted. It is interesting that as chair, Cr Kerr argues he must enforce rules for 3 motions that he disagrees with. Until the recent motions were tabled, the ‘legal advice’ that Cr Kerr obtained without using the CEO, didn’t exist. With this discovery of new information, past motions that Cr Kerr has put now become questionable.”
“It is difficult for rate-payers to pick up and understand.”
During the council meeting, Cr Zammataro attempted to challenge Mayor Kerr’s ruling that Cr Scomazzon’s motion was out of order.
He quoted the legal opinion from King and Co as saying an out-of-time motion could not be considered “unless permission for that purpose is given by Council at such meeting”. He asked who was “Council” for the purposes of giving permission.
Mayor Kerr responded that it was the chair, meaning himself.
Cr Zammatoro said that surely “Council” meant “all of us”.
At that point Mayor Kerr ended the meeting because all business had concluded.
Earlier Mayor Kerr told the meeting, “I was voted in by a majority of the community to represent them. I will continue to do that and the political games that you are throwing up at this time heading towards an election . . . .”
Cr Scamazzon interrupted: “It is not a political game. Councillors are trying to have a say . . .”
Mayor Kerr: “You say I’m the one blocking your motions that aren’t being put properly. If you can’t follow the legislation and follow the laws of this state, that is not my fault. I want to ensure council operates legally. There have not been any motions that have been put forward in a legal and appropriate way that have not been heard.”
The meeting also discussed the media policy. Cr Noli, Scamazzon and Zammataro rejected the original media proposal saying that it required councillors to get permission from the Mayor or the CEO before they could talk to the media.
Cr Scomazzon said councillors should have freedom of speech and that the proposal was “nothing but a gag order”.
Mayor Kerr said that nothing the media policy prevented councillors from talking to the media. They only needed permission if they were purporting to speak for the Council as a whole.
Cr Noli put forward whole new media policy along the lines of Ipswich Council which made it clear that councillors could talk to the media.
That was passed 3-2 with a move by Mayor Kerr and Cr McKeown to have the new policy “work-shopped” before being adopted.
ADDENDUM/
Mayor Michael Kerr’s full statement to Douglas News on the no-confidence motion:
“A no-confidence motion holds no legal status and has no effect on the future operation of the council.
I personally believe that It is extremely disappointing that these councillors have taken aim at me as the chair, calling a no confidence motion. Their energies would be far better spent looking at their own actions, which have the potential for improvement by further educating themselves to the legislative requirements of putting motions forward and the legally correct terminology required which can happen by workshopping the motions that they wish to present to council.
In all cases, councillor motions were not heard at each meeting due to their lack of knowledge of the legislation or lack of correct procedure. This was confirmed by legal advice given by King and Co on all occasions.
As the Chair, I believe that I have a legal responsibility to ensure that the meetings are held in the appropriate manner and that motions brought before the council can legally be heard, voted on, and enacted by the CEO.
A rescinding motion must be given in writing to all parties at least five full days prior to the motion being heard. If the motion had been voted on, the CEO could not enact the resolution as it would not be a legal resolution with out the correct clearance days. Whilst the act states at least five days the interpretations act clarifies full days.
Once a resolution of the council is enacted, it cannot be temporarily suspended. There is no legal ability for the CEO to enact a resolution such as this. A resolution, once enacted, can only be amended or rescinded. Councillor Zamatarro referred to when I temporarily suspended the negotiations of the ferry contract. This was suspending an action within the resolution, not the resolution itself.
A council policy must be legally able to be enacted by the CEO and a policy or a motion cannot be vague in its direction or loose in its interpretation. The legal advice clearly showed the justification for why these other motions brought forward could not be heard at a council meeting.
Any motion must be given to the CEO prior to the publication of the agenda in order for it to be a motion with notice. A motion without notice potentially does not give the CEO, staff, and other councillors an adequate amount of time to properly understand the motion. As such, the chair has the legal authority to decide not to hear a motion without notice if it’s not in writing ie on the agenda.
The advice given on Cr Scomazzons’ recent motion showed that the points put forward were also described as vague, broad, or uncertain. Therefore, it was not prudent to have the motion heard without further investigation or discussion to understand the potential impacts of what was being put forward and the legality of councils ability to enforce the motion being put forward.
It is normal practice for motions, and especially policies, to be workshopped to ensure that what is being put forward is well-rounded, effective, and reflective of the needs and aspirations of the community it will serve. By workshopping a policy, all the relevant stakeholders can come together to collaborate, share ideas, and provide valuable input. This approach promotes transparency, inclusivity, and democratic decision-making.
Workshopping also allows for a thorough examination of potential impacts, both positive and negative, on different aspects of the community, council, and councillors. It enables the exploration of alternative approaches, creative solutions, and innovative ideas that might not otherwise be considered. By involving a range of perspectives, the item being discussed can be refined to address any potential gaps or unintended consequences it could potentially create.
Moreover, workshopping encourages engagement and participation from those who are directly affected. It can empower individuals to share their concerns, suggestions, and expertise. This collaborative process is intended to build trust between the council and the community, as it demonstrates a genuine commitment to gaining the best outcomes for our community.
In all of the matters above brought forward by councillors, no discussion occurred prior to the motions being presented, nor were they workshopped to ensure the best result for our council and the community.
In closing, I believe that if the councillors had wanted the best results for our community, all these matters would have been workshopped, and the correct wording and process would have been advised by staff, ensuring that they would have been heard on the first occasion of being put forward. Instead their frustrations are inappropriately being directed at the chair.”
“Cr Scomazzon said Mayor Kerr should tell councillors who he met, where, and what was discussed.” This should be public knowledge!!!!