Thou shalt not ‘impute’!

Impute: to say that someone is responsible for something that has happened, especially something bad, or that something is the cause of something else. – Oxford Dictionary. 

Words are defamatory when they convey a meaning (or “imputation”) about a person that lowers the person’s reputation in the eyes of reasonable members of the community, or causes the person to be ridiculed, avoided or despised by members of the general public. – The Law Handbook 2016 

Journalist Joanne McCarthy has finally made public in today’s Newcastle Herald, 24 May 2017, some of what we were aware has been going on behind the scenes at Port Stephens Council for some time.

Update – 13 July 2017: Port Stephens is at the centre of two NSW Supreme Court defamation cases 


Port Stephens Councillors sit around a large elliptical table with the magnificent backdrop of a Shoal Bay mural with a colourful parasailer hovering behind them, but big warning signs projected onto twin screens at either side warn the public gallery that the recording of proceedings (via video or sound) is strictly prohibited. The Press are the only ones that can even take a picture and they have to have written approval and accreditation.

The notice paper also warns “that all discussion held during the meeting is tape recorded for the purpose of verifying the minutes.’’  If they decide to go into ‘Confidential Session’ (which they do regularly at nearly every meeting) the chamber is summarily cleared of all members of the public and media.

So much for open, transparent and accountable local government in Port Stephens in 2017.

When this Council was elected in 2012 one of the first things that they did was remove the Webcam that the previous Council had installed (at a cost of about $20,000). The reason given was that Councillors only had limited privilege protection, not the full parliamentary privilege of politicians, and they were worried about being sued for an indiscreet remark that they might make in a passionate debate. The Councillor who made that argument was sighted at a recent Dungog Council meeting, allegedly recording the proceedings on his mobile phone (Must have been verifying the minutes!)

The Webcam allowed the ratepayers (constituents) to watch what Councillors (their elected representatives) said on their behalf on their computers at home, live or later, without having to travel to Raymond Terrace. Even more important, everything that was said was on the public record, and Councillors could be held accountable for their contributions, and the Mayor for the way he conducted the meeting. There is no transparency or accountability in this chamber now, and even Maxwell Smart would be envious of the ‘Cone of Silence’ that descends when they lock the doors and go into confidential session. They now deliberate Code of Conduct allegations against one another ‘in confidential session’, even when the defendant asks for a public hearing.


State and Federal politicians are held accountable for what they say in frequent TV broadcasting of Parliamentary proceedings and the publicly available Hansard written record. Even if they can’t be sued for personal defamation they are still accountable in the court of public opinion for what they say.

So what does all this mean to the Port Stephens Ratepayers? It means that Council can record anything you say, by interjection or in public access at a Council Meeting and use that as evidence if they want to sue, or take action against you, because they have warned you in writing prior to the meeting in the little pink notices that they put on the gallery seats. But even if you did record what was said on your phone, if they catch you they will suspend the meeting, call security and remove you, and you can’t use that recording because they have expressly not given you permission.

The article in the Herald today brings into sharp focus where all this obsession with controlling transparency and accountability has ended up. Here we are at the start of an election campaign, where some robust debate is required to expose some of this Council’s questionable actions over a long five year term to public scrutiny, and the incumbents are suing each other in the Supreme Court for ‘imputing’ things about one another. Isn’t that what a good healthy election campaign is all about? This is supposed to be a democracy with ‘freedom of speech,’ is this behaviour designed shut down all debate by threatening to generate hundreds of thousands of dollars in legal fees for criticizing an opponent?

To make matters worse, we are aware of public court listings for at least two other members of the general public that are being sued for ‘imputing’ on Facebook. One of these people has also subsequently declared himself as a candidate. Apparently one injudicious remark on Facebook is all it takes these days. This is very scary stuff for ordinary people, it can cost over $100,000.00 in legal fees just to get to court without even thinking about a finding against you and the other sides costs on top. Think about that the next time you feel like venting your spleen on facebook……….!

We are also aware of two other recent publicly listed cases involving the Mayor taking defamation action in the Supreme Court against three parties, they have now all been settled. All we are allowed to say about one case is on the front page of this website, because it involved this Association and its Webmaster.

The other case involved a Councillor. We would like to know who is picking up the legal tab and settlement costs for all this litigation. We have reason to believe that it will be the ratepayers for some of it, probably in the next indemnity insurance premium. The sting in the tail with all this litigation is that when the parties have run out of mud or money they generally settle. That is when the lawyers jump in and cover their tracks with a confidentiality clause so that nobody ever finds out about the hundreds of thousands of dollars of crippling costs of these actions.

We have lodged a formal GIPA request (what used to be called Freedom of information) with PS Council, after an informal one failed to elicit any useful information. We have asked for detailed legal expenses for litigation involving PS Council since 2014, settlements paid, and the amounts paid in legal insurance premiums over the period.

This is ratepayer’s money that we are asking about. This used to be disclosed in the Annual Accounts in an understandable format. GIPA is now the only method available for TRRA to extract this sort of information, which should be publically available. The removal of the ‘Special Purpose Accounting for Business Units’ was another classic example of this Council’s obfuscation in not providing any detailed information in its accounts about the individual performance of its Holiday Parks and other business ventures some of which have lost substantial amounts of ratepayers money in the last few years.

We were looking through the minutes of an ordinary Dungog Council meeting the other day and were surprised to come across a Litigation Report. How refreshing, no secrets here, complete details, Litigant, Matter Description, Decision/Status, Costs F/Y Ending 2017, Actual costs to date, it even has a breakdown of what each lawyer received. Plus the legal budget and actual expenditure. If Dungog can do this why can’t PSC? Even our request for the cost of indemnity insurance premiums yearly since 2014 was refused because it was considered ‘Commercial in Confidence.’ Really? What are they hiding here?

This is the toxic environment that we now find ourselves in for the lead up to the next Council election on 09 September 2017. In the last election in 2012, there was very little public scrutiny of the incumbent Councillors, most of whom, with the exception of Councillor Dingle, did not front up to our four TRRA Meet the Candidate Forums. Please come along and meet the ones that do turn up to our Forum in Nelson Bay on 15 August, they will be the ones who are going to subject themselves to fair public scrutiny and are probably the ones that you should trust with your precious vote. All candidates will be invited.

Come along and ask them what they can do to bring back some transparency and accountability to the next Port Stephens Council and a bit of genuine respect for ratepayers and fellow Councillors.

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5 Responses to Thou shalt not ‘impute’!

  1. Andrew Johnson says:

    You want transparency Dick?

    Do some digging to find out who the owner of xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx..

    Now, who could it possibly be…? Til that is exposed, and the person disavowed of your group, the TRRA is little more than a cheer squad for the far Left. But that wont happen

    Are your meetings webcast? Pot, meet kettle.

    Your argument totally falls apart, Dick. You see, you are railing against the Council not having a webcast with their reasoning being that a careless comment may see that person in legal strife and council covers that legal burden. Yet, you also say, “oh poor So and So, being sued for making an injudicious comment”. This is exactly the thing Council is trying to prevent. And, as a ratepayer you have a stake in ensuring legal costs are low.

    • Dick says:

      Andrew: All comments on this site are welcome, they are moderated but we try to print them all. This story is about transparency, accountability and the cost the current of out of control litigation around PS Council. We are pretty sure that the redacted portion of your comment refers to (1) a matter that is currently before the court, (2) clearly identifies someone and (3) is probably defamatory. Just as well we do moderate comments! Kettle, we could have all ended up in the pot……!

      We have not webcast our TRRA meetings so far, but could be a good idea. The recent one that 200+ people attended on Nelson Bay building heights probably would have been worth the effort. We were considering videoing the ‘Meet the Candidates’ Forum and posting it on Youtube, but our incumbent Councillors are so camera shy it would probably only give them the perfect excuse not to front up.

      Remember, our General Meetings are not like Council meetings. We encourage people come along and interact by asking questions or contributing to the discussion. A webcam might defeat the purpose. Aside from filling out a form and being granted 5 minutes Public Access at the whim of the Mayor (we get knocked back regularly) you don’t get any say at a PS Council meeting. We do post the minutes of our General Meetings on this site and a lot of the extensive PowerPoint presentations as well.

      Cheers from the far left……

    • Michael Fibbens says:

      “TRRA is little more than a cheer squad for the far Left”.
      Hmm – I’m not a member of the TRRA, but I’m appalled at this attempted labelling of the group. I haven’t seen any evidence of this leaning in the time I’ve read TRRA’s offerings. Accordingly, this looks like an attempt to assign a political label to a group with a membership likely to have quite diverse political views. Do we have a formal study of the political affiliations of the group?

      I’ve held a range of political views during my various careers. Of late, I’ve been repelled by “Liberal” reliance on turning a quick buck to assess “what is good”: and I’m attracted by political views that encompass concepts of fairness and equity.

      Given the reported haphazard conduct of our council; conflicting information from it, and abysmal outcomes in town planning, the Tomaree Action Group probably provides an invaluable service to ratepayers. However, if somebody can evidence that TRRA are really a mouthpiece for the far left, I’d be delighted to read (and respond to) their argument.

      Michael Fibbens.

    • Margaret Wilkinson says:

      Andrew – Members of TRRA, and particularly Committee members, would find your comment quite offensive – “little more than a cheer squad for the far Left”. We represent the ratepayers of Port Stephens and any assumptions you might make about TRRA as an organisation is right off the track. We are Left, Right, Centre and Swinging Voters – just like the rest of our community. Some might try to promote us as otherwise for their own gains. I am just thankful that we have such a keen and enthusiastic volunteer Webmaster in Dick who exposes what is really going on around here. He and other TRRA members spend huge amounts of personal time on highlighting the good, bad and ugly. The TRRA website is an extremely valuable resource for everyone, including being used for background research by journalists. We would have less ratepayers with their heads firmly buried in the sand if they too read it.

    • Dick says:

      (Andrew has posted another comment that casts political aspersions one individual on our Committee of ten)
      I made the point in reply to your last post that Comments to this site are moderated, and we do try to post them all, unless they are defamatory, personal or factually wrong. Our ‘House Rules’ are in the ‘Have Your Say’ menu.

      In our Association we have people with very diverse backgrounds that bring the skills and qualifications that they accumulated in their professions to TRRA for us to use for the betterment of all in the Tomaree community. They also bring whatever political views that they have accumulated as well, and I can assure you that they are just as diverse. We are all very aware that the main reason that TRRA has been so successful in what we do, is the lengths that we have gone to, to make sure that TRRA does not become politicised.

      I would suggest Andrew, that if you are really interested in what we do you should come along to one of our General meetings and see for yourself what we really are about, and this might save you from further misconceptions. I would also encourage you to comment on the subject of the articles posted here, not party politics or the individuals.

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