Thursday 16 April 2009

Conduct report called a sham, riddled with errors

Yesterday's sitting of Cairns Regional Council will go down as an historic occasion. It will long be remembered by those present, and the minutes will record it in posterity.

But it will be for all the wrong reasons.

Yesterday, the Council dealt with a Code of Conduct case against Councillor Diane Forsyth. It turned out to be nothing more than a group of Councillors mounting a vengeful political and personal assault on another Councillor of a different political persuasion.

The Conduct inquiry masqueraded as upholding Councillor's ethical standards, but as observers will see, it did nothing of the sort.

It also calls into question the role played by the Council CEO, Noel Briggs, and the way the investigation of Councillor Forsyth was conducted.

It was an appalling charade that aimed to silence Forsyth and discredit the Yacht Club-climbing politician, who clearly acted on an issue that the same Council failed to deal with following its own resolution to engage in talks with the Premier.

The CEO failed to carry out the resolution of the Council to get the Mayor and Premier together, and halt the planned demolition of the historic waterfront Yacht Club building.

Noel Briggs, instead of supporting his Councillors with sound advice and the voice of a mentor, as our most experienced public servant, appears to have acted in a way that demonstrates he had pre-judged Cr Forsyth and had embarked on a course of action himself, designed to silence and discredit her.

On Monday October 13th, a hastily-called press conference was held, just two hours after Councillor Forsyth scaled the building in protest. The Mayor did not take part. Confusion reins to this day why she didn't get to it. It was a mixture of other priorities and the plain embarrassment of talking publicly against the Mayor's own Cairns 1st Councillor. There was also the pressure from the Labour party for Val to remain silent on the issue of protecting the old Yacht Club building, as it was a State-sanctioned Labor decision to clear the site.

The October 13th media conference was the beginnings of what was to become a long-drawn out, kangaroo court. The CEO set himself up to be a self-appointed judge and jury. Instead, his comments to the media that morning,, and his anger condem him rather than Cr Forsyth.

"Let me make this perfectly clear, Councillor Forsyth was not representing the Cairns Regional Council. I want to make that perfectly clear," he told the media.

Yet he spent the next five months conducting a shameful and incompetent inquiry - carried out by political mates on the Tablelands - in an attempt to prove that Councillor Forsyth was in fact acting in her capacity as a Councillor that morning.

Briggs needed to prove this, so a breach of the Code of Conduct could be found.

"No, I have received no complaint, but if one were to come forward, I will investigate it," Briggs told the 11am media briefing, as a clear invitation.

This single ill-thought through media event was, on the morning of 13th October 2008, the beginning of a litany of unprofessional and politically-motivated actions, directed from the CEO's war-room.

It was sanctioned and had the support of the Deputy Mayor, who helped dig out the complainant, needed to kick-start a Code of Conduct enquiry. As quickly as the next day, former Holloways Beach Harcourts owner, Niki Johnston, along with her partner, local artist Robin, fired off their email complaint to the CEO. The Johnston's have supported Cochrane's election camapigns.

"Councillor Forsyth's behaviour exceeded the bounds of both professional and responsible ethical standards to her position as an elected representative of this city," Johnston wrote. The words were spoon-fed to Johnston, and her partner, who has a history of writing unsigned negative letters to Council, asking for Val Schier's resignation.

Only two other complaints came forward. One was anonymous, refusing to be interviewed, nor identified.

The third was from the Port Authority's own demolition contractor, Martin Anton. He cited $1,500 costs as damages sought. "She shamelessly put her personal interests before those of Council or the general public interest," Anton said. "This is a blatant breach of the Code of Conduct for Councillors." Evidently, our city's most famous building-wrecker knows local government rules and regulations inside out and feels he is competent enough to dish out advice across this complex field.

A month or so later, Briggs commissioned his former Mareeba Council mate, Colin McDowall, a Mareeba accountant and Returning Officer for the seat of Cook, to investigate the compliants and report back.

It's clear that McDowall's brief from Briggs was to construct a damming, biased and one-sided outcome. Inevitably, the report found no less than six breaches of the Code of Conduct, however it was flawed from the outset. As a measuring stick, he used an outdated Code of Conduct. The report was leaked, and embarrassed those behind it, including its author, as it exposed its real motivations.

I happily release this report publicly today. Few have seen this document, and when you read it, you will see why it was a sham report, and all those behind it should be ashamed. You can download Colin McDowall's report here.

Forsyth was angry and disturbed at the tone of the report and its unprofessional nature, and that she was not given any fair or proper hearing.

Briggs soon learnt that he had to discredit the report in its entirety, and even the Mayor said that it would "never be seen again." A second report was then promised on the Forsyth incident, but rather than a new report, only a review of the initial report was produced. The review was written by a firm called Far North Investigations, headed by a Tony Walsh. The review was produced just hours before yesterday's sitting of Council.

No Councillor was to see this second report or review, until Cairns Post journalist Thomas Chamberlin asked the CEO on Tuesday afternoon how were Councillors able to make a decision without seeing the review. Bryan Law then sent out an email to all Councillors at 2pm, demanding the CEO provide the report to every Councillor, as a matter of urgency.

I also called for the release of the documentation on Wednesday morning. The CEO hurriedly copied the document, which one Councillor informed me was "only typed up in the last 24 hours on a Council computer."

You can download the first five pages of the 32-page $3,548 'report' - that's $236 an hour. I will provide the rest later.

In an astonishing revelation, 'Far North Investigations' recommended that none of their documents be given any public release, and went so far to say that Councillor Forsyth should also not see them.

"We would suggest that a letter from the Mayor or CEO detailing the investigation findings would be sufficient to convey the outcome to Cr Forsyth."

They also made reference to the unauthorised release of the first report.

"The previous report was provided to Cr Forsyth and this led to it becoming available to certain individuals who have proceeded to subject the report and the investigative process to scrutiny and ridicule.

God forbid, the public should scrutinise such a report! It deserved all the ridicule it got. Following today's release, I dare say there'll be a lot more.

And the majority of Council followed like vengeful sheep to try record a breach of the Councillors' Code. Yet at the meeting there was utter confusion as to which Code they were referring to.

A new Code of Conduct was adopted in May 2008, however both the original McDowall report and the FNI review based their findings on an earlier February 2008 Code, which forbids specific actions of public protest when it seems clear that the Councillor could be representing the Council. The amended version, allows such freedom of expression, making yesterday's ruling 'a sham', as Councillor Leu said.

Furthermore, the Local Government Act does not define/limit the time when a Councillor is on duty. The Code of Conduct applies to Councillors only in the performance of their duties – when he or she is engaged in business or activities relating to Council business.

A Local Government law expert told CairnsBlog that the sit in protest on the Yacht Club building was in relation to a State Government decision - a failure of the State Government to acknowledge or recognise a community petition of 11,000 signatures, asking for the Cairns Yacht Club to be saved.

"I don't remember ethical principle breaches being investigated when a former Mayor Kevin Byrne, not on Council business, dressed himself up as Arafat - days after his death - and caused a commotion and terrible embarrassment for the Council and himself,"

Only Councillors Leu, Lesina and Pyne said there was no breach to answer for. There's more to tell in this saga, but there's enough for the average bear to consume in this sitting.

After the CEO returned to his Level 3 office following yesterday's meeting, some Councillor shared their displeasure with Briggs over the way in which the Conduct enquiry was handled, and how it has discredited the Council.

Some Councilliors told me he fucked up on this one.

I think he did indeed.


Mark Davis said...

Dear Councillor Forsyth, while I disagree with the recent sordid and politically motivated campaign to save the yacht club, I do agree with the principle behind your protest.

My concern now, however, is not that campaign or your actions. It is with the activities of the majority Conservative group of councillors and the Cairns Regional Council chief executive.

After watching last evening's television coverage, it is clear that the charges and the investigation were, as you say, a witch hunt.

I ask you that you make available to this blog the two reports and the CEO's summary so that we know the facts behind this Star Chamber.

The other thing that greatly disturbs me is the fact that the council vote to accept the findings of the reports was made without you being able to put your case to the so-called investigator or directly to the council.

In other words you were the subject of a Kangaroo Court, an Inquisition. You were denied natural justice.

As a ratepayer I also want to know who were the investigators and what their qualifications are, and who made the decision to employ them and on what basis. And what were the terms of the investigation and on what legal basis was the investigation commissioned and paid for?

It appears that the initial report was grossly faulty, as in the words of Cr Leu it was based on an outdated code of conduct. Was a second legally constituted inquiry held on the foundation of the current code of conduct, or was there a quick fix to suit the CEO and the six Conservative councillors? When was the second investigation, if any, commissioned, and on what basis?

Who provided the legal advice that irrespective of which code of conduct was used the result would have been the same. On what basis was that legal advice sought and when was it sought?

The CEO must answer these questions or be condemned by his silence.

It is also disturbing that no councillor was given the report that was the basis of the the decision until late yesterday afternoon. How can an informed decision be made on this basis (unless of course unless the whole thing was a set-up)?

Finally, I am sure Cairns residents will reject the use of CRC as a political football by the six Conservative Councillors, who are in the majority. Elected power must be used in the interest of all ratepayers, not the local branch of the Liberal National Party.

Your Fifth Grade English Teacher said...

Why can't Kiwi's figure out when to use "its and when to use "it's".

Please get a 12 year old to go thru this post and fix the grammar up. It's giving us all a headache!

John, Kuranda said...


I have enquired previously about membership of the LNP by elected councillors - only 1 (and I will refrain from mentioning the name) is a member of the party.

Which is a damned site less than those councillors who are members of the ALP.

Quickie said...

Rah rah rah Mike !!!

Whoop it up as much as you like but the plain facts are ...

1. Cr Forsyth clearly trespassed onto private property.
2. This act was in deliberate disobedience to the signage warning that that trespassers would be prosecuted.
3. The area was a workplace. Therefore any activities such as entering and scaling the building were in contravention of the Workplace Health and Safety Act.
4. All the above Acts are administered by the Queensland State Government act in in the best interests of ALL Queensland citizens.
5. It was the Queensland Labor Government, through it's police force that bought the prosecution.
6. It was the Queensland Labor Government through it's Magistrates Court, that found her guilty.
7. The CEO of the Cairns Regional Council had no alternative but to apply due diligence and examine this unlawful behaviour of a Councillor once a complaint was laid.
6. If Noel Briggs had simply ignored these complaints, he would be castigated for doing nothing.
7. Poor bugger ... he can't win, but I guess it's no secret that this cock-eyed blog wants rid of him. I mean he was appointed by Kevin Byrne.

Arthur Festerbestertester said...

oh, and another thing? i see from this morning's cairns post that council voted against a review of the investigation. how surprising. there has already been a great deal of arse-covering on this issue, and it appears that the gang of six and the CEO are at it again. What have they got to hide. judging by the documents now available, an awful lot.
The McDowall report would be a laugh a minute if it hadn't been commissioned and written with one result in mind: destroy an individual councillor. The so-called review is just as bad. Both represent a denial of natural justice. Both contain untruths and distortions of the truth and statements that are simply outlandish and ridiculous. The McDowall report states that a number of laws had been breached. This is not true. At the time of writing the report, the charge of trespass had not even been heard, let alone any judgment handed down. No charges were ever laid against Cr Forsyth in relation to other so-called breaches of the law. The entire inquiry is an abuse of process, an abuse of power, and a travesty of justice.

Jude Johnston said...

Thanks Noj Nedlaw, I was dashing off to work early and thought I would have a look at the Australian Business Registry when I got home, but you have already been there, done that and found the info.

The “Report” is shocking in its lack of professionalism, and serious questions need to be asked about the qualifications of this person to make the allegations contained in this deplorable piece of writing.

To quote Mr Briggs, Council only has “dealings” with:

“recognised *** agencies *** registered with the peak professional body – those recognised to operate within the professional code of ethics,”

What “recognised agencies” and “peak professional body” is the unidentified “investigator” registered with, and what “professional code of ethics” is applicable in this case?

What legal qualification has the writer that he/she/they are able to comment on the Councillors compliance with statutory responsibilities?

One suspects that the writers desire for anonymity is due to the prospect that such a document may well expose him/her to legal action by the Councillor.

In any case, the Minister for Local Government should take a long hard look at the processes and outcomes of this sham.

Sue E said...

The community is entitled to have concerns over the manner in which this whole affair was handled. The CRC Model Code of conduct for councillors No.1.02:22 was adopted by council on the 24 April 2008 and should have been the only basis upon which the investigation was conducted. Under this code an impartial external investigator can be appointed for a minor breach if the complaint can not be informally resolved – one wonders why this could not have been achieved. The code is quite clear that the investigator’s report and the councillor’s response must go to council and if council [ formal meeting] decides a breach has occurred the councillor should be given an opportunity to make a submission on the proposed action before council makes a final decision. That did not appear to occur because council made the decision there and then at the 15 April meeting. Why the required documentation was only provided to councillors shortly before the meeting is also questionable. Minor breach investigations must comply with the principles of natural justice.
The Code of Conduct which also reflects “ethic principles” is from my understanding, applicable to councillors only while engaged in Council duties and business and this seems to be the crux of the issue and something that needs legal clarification.

Concerns are reasonable when one considers that on the 17 September 2007 - Finance and Administration Committee Minutes:

“That Council note the intention of the Crime and Misconduct Commission to delegate investigative powers to Cairns City Council in accordance with S 40 of the Crime and Misconduct Act 2001,
That Council delegate the authority to the Mayor and Chief Executive Officer in accordance S. 472 Local Government Act 1993 to negotiate and finalise any and all matters in relation to this delegation from the Crime and Misconduct Commission.” AND`

“This delegation clearly indicates that the CMC’s considers that Cairns City Council’s governance policy and procedures are extremely robust.”

I don’t know if these delegation powers have now been given to Council but given the way in which the Code of Conduct complaint was managed it’s a bit of a worry.
It’s rather interesting to note that Crime and Misconduct Commission Crime staff are visiting Cairns next week to host seminars to help senior managers, councillors and administrative staff deal with and prevent official misconduct.

Arthur Festerbestertester said...

In response to Quickie, who still seems to be living in the dreadful days of the Bjelke-Petersen regime, when gross corruption in the form of abuse of official powers was a daily occurrence:
Nowadays Queensland Governments and Ministers know that the police and the judiciary are independent of the political process. They are not the personal and political playthings of Ministers of the Crown.
It's called the separation of powers, and respect for this doctrine is one of the things that make the new Queensland so much better than the ugly, corruption-ridden police state that it was under the Bjelke Government.
Quickie's failure to understand that the police and courts do not belong to any political party is why the Liberal National Party was yet again rejected by Queenslanders at the last state election.

John, Kuranda said...

Arthur F
Agree with all you have to say up until your last sentence. I think that "Quickie" attitude as espoused in his blog post is not typical of the average LNP member; certainly not this little duck. And I am sure that your perception of Quickie's perceived attitude towards the separation of powers was not the cause for the Labour's win.

And I am sure that you know that too - but hey it's a quiet Friday so what's a little s@*t-stirring between friends!

Fred Nerk said...

I really want to agree with Arthur, who seems to be the most reasonable person on this blog, but on this occasion I can't help but remembering the old saying that law makers can't be law breakers.

Di Forsyth will eventually make by-laws that not everybody agrees with. Some people will not agree with those laws and others will be prosecuted for disobeying them. Those people will be fined and dealt with under the law and face possible ramifications at their workplace? How far will the Bryan Law defense that they were just practicing their "right" to partake in civil obedience take them when the judge says they must pay their parking fine or comply with the conditions of a development approval? Not very and neither it should.

You can't pick and choose with the law, I'm afraid. You might not like it, but you have to stick to the speed limit. Unfortunately, the Councillor has crossed the line on this occasion and must suffer the consequences both in the court and in her workplace.

For some people if they lose their drivers license they lose their job.

Di must lead by example and sometimes that means swallowing your pride, protesting within the law and leading by example.

Cr Leu from Douglas manages to do this and so should Di.

Arthur Festerbestertester said...

In response to Fred, I have said that I disagreed with the campaign - I thought it was a cynical political ploy - and I don't particularly agree with Cr Forsyth's actions, but I strongly believe it his her right to make the choice she made. What I entirely and vigorously disagree with is our council being turned into a kangaroo court. The question of law breaker and law maker is an interesting one. There is no black and white. Would there be peace in Ireland today, bráthair, if Gerry Adams, MP, had been prevented from standing for election because he was a convicted criminal? If we want a female example in deference to Cr Forsyth and social dissent, then we need look no further than Emma Pankhurst, who was jailed innumerable times but was pre-selected by the Tories to stand for Parliament (she died before the election, unfortunately, but she would have made a magnificent MP)

Joe, Gordonvale said...

I note C.R.C is considering a levy to help the struggling tourist industry,Val says a tourist levy is needed and should only apply to
businesses in the industry.
This decision comes shortly after
council puts up a million dollar
guarantee for a local sporting team!!Then we have pee-wee Blake
saying all ratepayers will contribute though an increase in general rates.Is this fellow trying to run this council or what.
I note Blake is chair of the finance committee,may I ask what formal qualifications he holds to be on a finance committee.
Council should be considering passing the cost of running the esplanade pool onto the backpackers and people who use the
pool,instead of hitting the ratepayers with these costs.
If a tourist levy is required,let the tourist industry itself meet the levy,ratepayers are being slugged enough as it is.
Also please someone on the council,take charge of Blake before he shoots himself in the foot again.

Dutchie said...

So Di climbed on a roof. Big deal. She stood up for what she believed in. Big deal.

Don't people in the Council have anything better to do complaining and investigating? Maybe they should all go back to part-time jobs, take another job on the side so they don't have the time to cook up dribble.

Or, work hard, talk to the people, and do the best you can to represent them. Indeed, exactly as Di does.