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"It’s the law - they’re not allowed to do it": Former minister weighs in on gag order

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The former minister who introduced the Act that governs the Adelaide City Council insists a newly-installed gag rule on elected members is unlawful and anti-democratic.

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Mark Brindal was the Liberal minister for Local Government between 1997 and 2002, bringing in the current City of Adelaide and Local Government Acts.

He says a new standing order that passed this week, preventing councillors from speaking to the media about their proposals before the publication of meeting agendas, would be “disallowed under the City Of Adelaide Act”.

The controversial rule passed on Tuesday night with the support of councillors aligned to the ‘Team Adelaide’ faction and independent councillor Jessy Khera.

Long-standing councillor Anne Moran has already flouted the rule, speaking out about a planned motion requesting that city churches open their doors to rough sleepers at night, and has flagged that she intended to continue to breach the standing order.

Legal advice received by the council notes elected members who repeatedly defy the standing orders could be sanctioned with code of conduct warnings and referred to the state’s ombudsman.

But Brindal says he would welcome the ombudsman’s intervention, saying it would render the new standing order useless.

They can’t do it. They shouldn’t have done it. They’re not allowed to do it

He points out that Section 22b of the City Of Adelaide Act – which he calls effectively the council’s “constitution” – details the role of council members, whose job is “to represent the interests of residents and ratepayers and to facilitate communication between the community and the council”.

“I think it’s as clear as dogs’ balls,” he said of the new gag order.

“They can’t do it. They shouldn’t have done it. They’re not allowed to do it.

“It’s the law – and the law gives Anne Moran and every elected councillor the duty to facilitate communication.”

Brindal said in 1998 he formulated a “special act of parliament which creates the city council and spells out [its] duties”.

“They’re still bound by the Local Government Act, but the primary act for the city council – their constitution act – is the City Of Adelaide Act,” he said.

“If you tell me as an elected member of parliament I’m bound by law to facilitate communication with my electors, do you think anybody can deprive me of the right to do that?

“For a democratically elected body to turn around and try and muzzle its members from talking to the people that elected them – I can’t work out why anyone would ever try to do that. Do we live in a democracy?”

However, legal advice provided to council from KelledyJones lawyer Natasha Jones stated the new rule was compliant with state legislation, advising that “there is a clear, unfettered ability for the council to adopt the proposed policy position”.

Jones’s advice addresses section 22b of the City Of Adelaide Act, saying the “envisaged and prescribed role” of members “is not, in any manner, compromised by the… introduction” of the new clause, “because it does not operate to limit or restrict the ability of Council members to fulfil these functions of office”. “That is, it is not, as already referred to in the media, a so-called ‘gag’ provision because it, simply, does not achieve such an outcome,” she wrote.

“Rather, it promotes informed and responsible communication with the media.”

She said the new rule is, “to my understanding, to ensure that Council members are fully and accurately informed about proposed motions, in a constructive and responsible manner”.

“This will occur through Council administration, not from media speculation and sensationalism, in the first instance,” she said.

“In my opinion, the proposed clause does not create an impediment or otherwise burden communication about government or political matters in its terms, operation or effect. Such communication remains available to all Council members whether such communication is to the media, residents, ratepayers or someone else but, pursuant to the proposed amendment to the Standing Orders, in a responsible and informed manner that does not risk bringing the Council into disrepute but, conversely, will operate to generate community trust and confidence in the Council.”

But the state’s media union – the Media, Entertainment and Arts Alliance – disagrees, with secretary Angelique Ivanica calling the new rule “just bizarre”.

In the context of what we’re seeing at the moment with [federal police] raids on the media… on the one hand we’re fighting for press freedom, and here’s the council shutting themselves down to the public that elected them,” she said.

“They’re the biggest council that has not only residents but many businesses as ratepayers… they’re more than a council, they’re involved in decisions that affect the whole state.

“To just close down – where’s the responsibility as elected officials to be able to communicate with the community? Where’s the accountability?”

Ivanica said the public had “a right to know what goes on with their council [and] to have a self-imposed gag order… is just outrageous”.

As the fallout continues, the exact nature of the gag order continues to evolve, with the council’s governance manager Rudi Deco telling councillors in an email, seen by InDaily, that if Moran “intends to go to the media” with proposed motions “it will not contravene section 229.2 of the standing orders… if what’s conveyed to the media is not the written notice of motion”.

“This means a council member could speak to the media about ideas and a proposed motion before it is formulated and provided as a written notice of motion and it won’t be a breach of section 229.2,” Deco wrote.

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