Inner West Independent

Byrne tells NCAT he did not understand conflict of interest rules

By WENDY BACON

With local government elections postponed until December 2021, Inner West Council Mayor Darcy Byrne faces a possible suspension that could prevent him from standing to continue leading the Council until the postponed election.

Inner West Councillors vote for the Mayor, unlike in the nearby City of Sydney which has a popular election. The current term expires in September.

In May this year, Byrne was found guilty by the NSW Civil and Administrative Tribunal (NCAT) of breaching conflict of interest provisions and improperly using his power as a Councillor to get two fellow Councillors Col Hesse and Pauline Lockie to apologise after he had threatened them with defamation proceedings. The Tribunal has said Bryne acted unethically and misused his public office.

Consequences for Byrne 

A range of penalties is available to NCAT including counselling, a reprimand or suspension. Working in Byrne’s favour is that he has now told the Tribunal he regrets the breaches which are his first offences. He also posted on Facebook a character reference from retired High Court judge Mary Gaudron.

He may well avoid suspension. But on the less favourable side is Byrne’s own earlier attitude to the allegations against him. Byrne told a Council meeting that the charges were “trumped-up”. He explained to NCAT that he regretted making this serious allegation but did so because he was  “discombobulated” by a move against him in Council.

This accusation that there was a conspiracy against him was not one made in the spur of the moment. He made it last year in an appearance at a Parliamentary Inquiry into NSW Government rorts. The Office of Local Government later offered detailed evidence showing that its investigation began well before the hearing was scheduled. Byrne continued to point to a political conspiracy in answers to this reporter’s questions after the NCAT judgement was published. But Bryne told the Tribunal hearing on the penalty that after reading the judgement, he realised he was wrong.

NCAT principal member Linda Pearson has reserved her judgement.

The most surprising aspect of Byrne’s argument in favour of leniency is that he admits he has not previously clearly understood ‘conflict of interest’ provisions. The notion of pecuniary and non-pecuniary conflict of interest is key to accountable public administration. It prevents corruption by making private interests transparent. For these reasons, it is one of the most important principles in which all Councillors receive training to make sure they comply with Code of Conduct provisions. The Office of Local Government advises that if Councillors are in any doubt they should seek advice and err on the side of caution.

Byrne told the Tribunal that he had an “incorrect impression” of what was meant by a significant, non-pecuniary conflict of interest when the breaches occurred and conceded he “didn’t have the understanding that I should have”.

Asked for his response to this admission, Councillor Colin Hesse who served as an Acting Mayor on Marrickville Council as well as the Inner West Council said, “I am simply stunned that a three-term Councillor and a person who’s been Mayor for six years claims not to understand the conflict of interest provisions. Clr Byrne should acknowledge his responsibility and resign from the Mayoralty.”

Byrne’s admission that he has not previously understood the conflict of interest provisions raises questions about whether he may have failed to declare a pecuniary or non-pecuniary interest in the thousands of votes he has participated in since he was first elected to Leichhardt Council in 2008.

Earlier in July, Council passed a motion that noted both the NCAT findings against Byrne. It also noted separate findings by an independent conduct review that Byrne also breached the code of conduct when he posted social media posts about a Councillor [Lockie] that a ‘reasonable person’ would consider humiliating.

Bryne continued to publish the ‘humiliating’ posts long after the Council review. This reporter last observed them on July 7 this year. Finally, Byrne has removed them.  . The Inner West Independent contacted Lockie who confirmed that Byrne has still not apologised to her.

These matters raise questions about Bryne’s political judgement and his capacity to separate his own personal interests from the public interest. This is further illustrated by the fact that Byrne was present when three other Councillors declared a conflict of interest on the same occasion on which he mistakenly failed to do so. Hesse, Lockie and Greens Councillor Lou Steer left the Council chamber because they understood that they had an interest in the Mayor’s threat to take defamation proceedings which was part of the substance of the motion. How could Byrne have failed to turn his mind to the issue? Did he take the risk of staying in the room so his motion could pass?

The Council is finely balanced with Labor and the Greens each having five Councillors. Byrne narrowly won the Mayoralty in 2018 with a combination of five Labor votes, two Liberals and one independent Victor Macri defeating five Greens and two Independents Lockie and John Stamolis. As part of this arrangement, Labor Councillors voted as a bloc to deliver the Deputy Mayor position to Liberal Julie Passas who has described Byrne as begging for her vote in 2017 and 2019.

At the time, Labor’s support for Passas came as a shock. This alliance, which locked both the Greens and the two more progressive independents out of any power-sharing arrangement, mired the Inner West Council in conflict in its first term.

Byrne has told the Independent that “he was aware councillor Passas has a record of being argumentative on Ashfield council, but he didn’t really know her” but this too is surprising. It is hard to believe that Byrne did not see Daily Telegraph reports that in 2015, Ashfield Council censured and ordered Passas to make a public apology and acknowledge her behaviour towards a council staff member constituted “intimidation, harassment and verbal abuse”.

In 2016, the Inner West Courier reported that NCAT had found Passas engaged in seven grounds of misconduct and that even after warning from then Ashfield Mayor Lucille McKenna, she refused to leave the Council chamber. Even if Byrne hadn’t seen these reports, you would expect that ex-Ashfield Councillors Lucille McKenna and Mark Drury would have drawn it to his attention during discussions on the Mayoral vote.

In August 2019, NCAT ruled that a complaint of “unlawful homosexual vilification” by then-Deputy Mayor Passas’ neighbour Danile Comesoli had been substantiated. She was ordered to pay $2,500 in compensation and apologise.

Passas has now fallen out with Byrne who urged the Liberal Party to disendorse her. Assuming he is not suspended, he can no longer rely on her vote in the coming Mayoral election in September.

Even before the fresh election, Darcy Byrne is campaigning to be Mayor. As ebullient as ever, this week he posted up a large poster on his Facebook page supporting ‘Mayor Darcy Byrne’ with the words ‘CHAMP’, #Champion and #Legend scrawled over it. Both of Labor’s female Councillors Lucille McKenna and Anna York are retiring with only Bryne and Mark Drury to face the election again. After loyally sticking with Byrne up until now, it is unlikely that the Labor Councillors would not support Byrne continuing as Mayor despite the findings against him.

So who will stand against him? It is possible that one of two Independents Victor Macri or Lockie will put themselves forward as Mayor or Deputy Mayor?

The Greens had not planned to select a Mayoral candidate until after the election.  First-term Councillor Marghanita De Cruz is the only Greens Councillor seeking reelection. One possibility for an interim Mayoral candidate would be Rochelle Porteous in recognition of her 12 years of experience as a Greens Councillor and three terms as Mayor of Leichhardt Council.

Real policy differences

In all of the political maneuvering, we should not forget that underlying the conflict that led to Byrne’s defamation threat lie real policy differences and attitudes towards property development and housing in the Inner West.

The controversial vote that led to Byrne’s threats occurred in August 2018 when Bryne and Passas successfully moved in favour of proceeding with the exhibition of a controversial plan to develop Marrickville’s Victoria Road precinct by knocking down old industrial buildings to make way for high rise apartment blocks. This development is now called Wicks Place. Council staff had recommended delaying the exhibition. The developer was represented by two consultants with close ties to the NSW Labor Party.

The Greens, Lockie and Independent Councillor John Stamolis voted against the motion. After the meeting, Lockie posted on Facebook: “I’m appalled that other councillors ignored strong legal and planning advice from our own staff in favour of developers – and that the mayor was the one pushing this.”

Hesse posted a comment on the post, following a post by Clr Byrne of a link to a Council media release, stating “Here’s a promotion from the developers”. Other people also posted comments.

Those pushing approval for the residential development argued at the time that if the vote did not go through, the Rich Street Creative precinct on the opposite block owned by the same developers might not go ahead. It was predicted by Byrne and others that this Rich Street Precinct would provide 460 creative jobs.

Three years later, little has happened. However, just before the current lockdown, the Wicks Place developers managed to demolish most of the old industrial block, evicting several viable innovative and creative small businesses. The Rich Street Creative Precinct was supposed to begin before the apartments and be finished by now. Instead, it has not even begun and faces a very uncertain future. One thing that has happened is that Rich St. has changed its name to Timberlands which its developers are promoting as  “a campus working environment” with “the community at its heart”. A place where “creative minds are nurtured and inspired.”

Wicks Place begins the Victoria Road development that was strongly opposed by many in the Marrickville community and Council staff for many years. So far, it has led to a net loss of creative and arts jobs, rather than the hundreds of jobs promised by Byrne nearly three years ago.

With the elections postponed, this might be a good time to have a critical reassessment of what we mean when we talk about “creative and entertainment precincts” and what impact they will have on housing; and whether the prospects of younger people, including artists, living and working in Sydney’s Inner West is fast becoming an impossible dream.

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