It is Thursday 28 November 2019 and at approximately 6.00 p.m. Council are debating a motion by Cr Keith Rhoades as follows;
“That all contracts relating to the Cultural & Civic Space proposed for Gordon Street Coffs Harbour in excess of the prescribed tender amount of $250K are to be determined by full council and not under delegated authority.”
By The Editor
Debate turns around whether under the NSW Local Government Act you can delegate authority on the sale of council assets.
The Acting General Manager, Andrew Beswick (pictured below), filling in for an absent GM, Steve McGrath, appeared prepared for this debate.
In laymen’s terms he argued that our Council’s very clever General Manager was prepared for this possible argument and highlighted that in the 11 June motion that Councillors are revisiting Councillors hadn’t “delegated”.
No, he said, in fact they had “authorised” staff to sell Council assets such as the current Chambers in Castle Street, Rigby House and the Museum.
The argument being put by Council’s executive appears to be that because the wording is different the delegation provisions, and any restrictions on them under the Act, therefore don’t apply.
So let’s just step back and consider this argument before moving onto what this behaviour may mean among other issues.
The NSW Local Government Act has an entire section in it on the ability of Councils to delegate powers. The Act itself does not define the term ‘delegate’ however. On the other hand authorised is defined in the Act but only in respect to who an ‘authorised person’ is under the Act. Namely;
“ (a) an employee of a council generally or specially authorised by the council in respect of or whose duty it is to deal with, or to act in regard to, any acts, matters or things in relation to which the expression is used, or
(b) a police officer.”
The authorised person described under (a) above then has to follow the Act in relation to the powers that can be delegated.
Circular isn’t it?
But arguably also too clever by half by the Council Executive because the motion first passed by Council on 11 June essentially gave delegated power to authorise a delegate to execute contracts for the sale of publicly-owned assets potentially AT LESS THAN 10% OF VALUATION (which is arguably not legal under the Act) without bringing the matter back to council for approval.
Now we think the Executive’s argument is flimsy and quite frankly it has the whiff of semantic cow manure to it. And we suspect higher legal authorities would agree, albeit in less florid terms than the ones we just used.
But heck let’s just keep it simple and check out what the dictionary has to say;
To delegate = “to give a particular job, duty, right, etc. to someone else so that they do it for you.” https://dictionary.cambridge.org/dictionary/english/delegate
To authorise = “to give official permission for something to happen, or to give someone official permission to do something.” https://dictionary.cambridge.org/dictionary/english/authorize
What are the possible implications of this?
We reckon there is less than the depth of a cigarette paper’s difference between those two Cambridge Dictionary definitions. And we suspect that man British judges cite all the time in precedent setting judgements, the man on the Clapham Omnibus, would agree with us too.
And yet our Council Executive thinks it is OK on things like this that split votes and a split community should be further split?
So what does it tell you about how they are approaching getting the Cultural and Civic Centre going?
Is ‘whatever it takes’ the new moral code for them?
Inevitably this leads also to these questions too;
- Is Council’s executive being ‘fair dinkum’ or are they playing a game of semantics? And,
- Is this the first example of this or have there been other examples too?
We’ve argued before that the answer to (b) is ‘No, it’s not the first time’. Way back in 2017 in fact.
And then there is the whole breaking conventions on casting votes issue too – however that’s a related, but another, whole ‘can of worms’ in our opinion.
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