RATEPAYERS VICTORIA INC. 8/1248 North Road Oakleigh South 3167
Email : email@example.com or, bra.reynolds088@ gmail.com
Phone 03 9570 6227, 9589 2818 or 9874 0784.
17 June 2013
The Hon Jeanette Powell MLA, Minister for Local Government , 8 Nicholson Street, E/Melb, By email to: firstname.lastname@example.org
Dear Minister Powell,
Public Money Being Used to Support a YES Vote in the coming Referendum.
Thank you for the response to my letter dated 1st June 2013, as acknowledgement dated 10th June 2013, which indicates that the matter will be addressed in the normal course of business. From earlier experience that could mean weeks rather than days. This may be too late to enable prompt and fair resolution of the matter.
The current situation appears to be that a number of Councils are sending public money to the MAV which is then sending it on to an unregulated body, the Australian Local Government Association. We see this as a scheme to defraud the true owners of the money if we relate to S 74A of the Constitution Act 1975 (Vic). As such, Councils have no financial capital and may make payments only for a purpose set out in a budget and plan prepared and approved in the manner described in Parts 6, 7 and 8 of the Local Government Act 1989 (Vic) [LGA]. So far we have been unable to find any Council which has made budget provision for voluntary payments to be made to the MAV, to be onsent to the ALGA, for the purpose of supporting the ‘Yes’ case in a referendum which has yet to be legalized by the Australian Parliament.
At the very least, Councils must prepare a revised budget (s128 of the LGA) in order to make these controversial payments. Such a revised budget must then follow the notice provisions and the Public Process set out in s223 of the LGA. Any allocation of funds outside of the budget process is ultra vires – without authority.
All Councillors are required to be on the Electoral Roll. As such they have an obligation to vote in support of either the YES or NO case. When a revised budget to provide funds to promote the support one of their choices comes before Council serious difficulties arise. These are as follows:
- must avoid conflicts between his or her public duties as a Councillor and his or her personal interests and obligations. s76BA(a), and
- endeavor to ensure that public resources are used prudently and solely in the public interest. s76BA(c), and
- must not misuse his or her position to gain, directly or indirectly, an advantage for themselves or any other person. S76D(1)(a).
- must not use public funds or resources in a manner that is improper or unauthorized. S76D(2)(c).
When the matter comes to the vote, all Councillors will have either a direct or indirect conflict of interest. Direct interests are covered by s77B(1) which reads:
A person has a direct interest in a matter if there is a reasonable likelihood that the benefits, obligations, opportunities or circumstances of the person would be directly altered if the matter is decided in a particular way.
Indirect interests are covered by s78B(1)(a) which reads:
A person has an indirect interest in a matter because of a conflicting duty if the person:
(a) is a manager or member of a governing body of a company or body that has a direct interest in a matter
Further, ALL Councillors have a personal conflict of interest in any vote to allocate public funds which may be used for partisan purposes.
Obviously, because of the widespread conflict of interest, a quorum will be unable to be assembled. There is provision for the Minister to consider a written application from Council or the CEO to exempt Councillors from the conflict of interest obligations. (s80(1)(a) and (b)). The Minister must consider the public interest s80(1B)(b) before giving any exemption to any one or other group of Councillors.
In summary there are reasons set out in s76 of the LGA which prevent Council from making gifts of money to the MAV for purposes not related to the legal functioning of the MAV, and not related to the proper/legal function of Council for the (direct) benefit of the local community. Without express written permission of the Minister, any resolution to provide funds from the public purse for partisan referendum support cannot be put for want of a quorum.
For its part, the MAV (acting as banker) is unable to accept money “for a joint purpose by councils or a council and any other body” unless this body has been declared (as suitable) by the Governor in Council. (s17 of the Municipal Association Act 1907).
This issue has already gathered substantial momentum with funds firmly committed by a number of Councils. We expect the Minister to bring the matter to a halt – possibly by seeking an appropriate injunction in the Supreme Court of Victoria, or by immediately issuing a guideline determination in the matter. We ask that if this responsibility is not to be accepted by the Minister, we be advised within seven days of the date of this letter in order to arrange an appropriate course of action.
George Reynolds, Vice President.