SHIRE OF YORK DISCLAIMER FOR MINUTES AND AGENDAS

Date May 24, 2017
Hon David Templeman
Minister for Local Government
Dear Minister

Your Ref:                                    LOCAL GOVERNMENT DISCLAIMERS.


Everyone appreciates that Local Government Areas should be under ‘Autonomous Jurisdiction’, as being responsible for their own affairs.

However this only works when the standards set for required governance, across the board, is supported by mandatory enforcement by law, including the application of appropriate penalties.

The current required standards and compliances set in the Local Government Act, 1995, are outdated, ineffectual and largely ignored.

As you have already publically stated, it is your intention to review this act as a government priority for which you will be held to account.

If you care to read several disclaimers published in the Agendas and Minutes of the Shire of York you will find the one dealing with Copyright Law to be inadequate, unprofessional and potentially misleading.

The other tends to reinforce a public perception that some councillors are insufficiently trained to hold this position of responsibility and some Local Government Officers are insufficiently educated and trained to hold down senior management positions.

This is not the problem of electors in the Local Government Areas, it is your problem as the Minister for Local Government.

York is not the only Local Government Area where such problems appear to exist. It is endemic and systemic in nearly 50 % of local government councils.

Yours sincerely
David Taylor

PLEASE READ- to the Shire of York Chief Executive Officer, Mr. Paul Martin  

                
                 SHIRE OF YORK DISCLAIMER FOR MINUTES AND AGENDAS

Why bother having agendas and council meetings when nothing said by either staff or councillors can be relied upon in any material way. Is it a question that has no answer?
DISCLAIMER

“Any plans or documents in agendas and minutes may be subject to copyright. The express permission of the copyright owner must be obtained before copying any copyright(ed) material”.

RESPONSE:-

Dear Mr. Martin. Not necessarily, and I think you may find the term is copyrighted material.

Copyright does not subsist in Western Australia except by the Australian Copyright Act 1968 which is not referred to in your disclaimer.

Without due reference to this Act (and arguably the section defining copyright ownership and breaches of such), this disclaimer could be considered not worth the paper it is printed on.

Addendums include that the foremost requirement for the subsistence of copyright is that the work must be original. That may be difficult to judge, especially by a Shire.

‘Express Permission’ has to be in writing.

To contact the copyright owner may be impossible and that a genuine attempt to contact may be sufficient. How would you know?

In certain circumstances the owner of the copyright of a work, is not the owner of the work. This in particular applies to architectural plans and drawings where the owner of these works may present this material as an application for Shire approval, without copyright approval, because he/she has purchased the right to do so.

Next- under the Australian Copyright Act 1968, all works held under copyright by this act are subject to public fair comment and review which is also not mentioned.

A bit of free advice- all you have to do is change the wording to:

’Under the terms of the Australian Copyright Act 1968, any plans in agendas and minutes may be subject to copyright. The policy of the Shire of York is that the express permission, in writing, of the copyright owner must be obtained prior to any plans or documents being published in these agendas and minutes.

(Maybe you should ask Ms. Susie Haslehurst her opinion on matters of copyright. As a former executive of a book publishing company she should be fully aware of the advisory standards expected under Australian Copyright Law.)

This would give some legitimacy to an otherwise banal, blanket disclaimer that may not be legally enforceable.

I would also clearly define who is the arbiter of what express permission is required, for what purpose, and is this an acceptable demand.

The big question is does the Shire of York consider that it is the copyright owner of published Minutes and Agendas and does it get express permission to publish Questions from the authors of these works within these publications?

One answer is no! - The Shire of York does not appear to seek the permission of the authors of Questions to publish them in its agendas and minutes.

Another piece of advice is get a Copyright Lawyer to do disclaimers as yours is not worth a knob of goat faeces.

DISCLAIMER

‘Any statement, comment or decision made by a Council meeting regarding any application for an approval, consent or licence, including a resolution of approval is not effective as an approval of  any application and must not be relied upon as such’.

RESPONSE:

Dear Mr. Martin.

It is assumed any application for an approval, consent or licence appearing within an agenda at a Council meeting has been reviewed by the Shire of York staff member with appropriate jurisdiction prior to being presented on that agenda to council, otherwise it should not be there?

This suggests that neither, Shire of York staff, or councillors, can make properly informed decisions, in public, at a Council meeting, that can be relied upon in a court of law, or not give rise to choses-in-action by the applicant. (This could be considered unfair to some staff and councillors.)

In the past this has been confirmed by both the Department of Local Government and the Department of Consumer Affairs, in written opinion and comment, that neither, Shire Staff, or Shire Councillors could be relied upon as having the ability to provide proper, legally binding judgements, in public, at Council meetings because of such circumstances as lack of knowledge of statutes and laws and the potential for cronyism and Conflict-of-Interest breaches.

Nearly 50% of councils are known to be technically afflicted by these inabilities because nearly 50% of WA’s 139 Councils are considered to be below the required standards. Of these, 32 councils have council activity records that are so below average they are considered to be of moderate to high risk of committing (or have previously committed) a serious offence.  

Maybe you should try something like this:-

‘All material things raised at Council Meetings are for the purpose of fair public comment and review and discussion and resolution by Council. The confirmation of acceptance of each and every material thing to any third party will be in writing, on Shire of York letterhead, authorized and signed by the Chief-Executive-Officer’.

Local Government Areas should be seen to be run by professionals, not amateurs.

David Taylor.