In October 2023 I lodged an application to the Principal Councillor Conduct Registrar seeking that Cr Daria Kellander be found to have breached the Councillor Standards of Conduct in relation to several matters including in respect to inappropriate and inaccurate comments she made in an email and Facebook about me.

The Arbiter determined Cr Kellander’s conduct in relation to one of the three allegations was a breach of the relevant Standards and therefore made a finding of misconduct against her.
Cr Kellander was suspended from the office of Councillor for a period of 7 days in relation to this breach.

It was the first time a Hobsons Bay Councillor had been suspended.

Facts about the complaint

21 September 2023 – Noting that the election for Mayor was scheduled for 10 November, that the new Mayor would chair the Ordinary Council Meeting on 14 November and that there are 4 Councillors on the Council that have not been Mayor before, I wrote a confidential email to the Councillor group as Mayor on 21 September 2023 inviting them to a Councillor only discussion after the Councillor Briefing Session on 17 October. The email is provided below:

17 October 2023 – Not all Councillors attended the briefing on 17 October so the discussion did not occur. As councillors were all getting together for the CEO’s performance appraisal on 31 October, the Councillor-only discussion was re-scheduled to that date.

29 October 2023 – Cr Kellander wrote to all councillors, the EA to the Mayor and Councillors and the Manager of Corporate Integrity, completely misrepresenting my email and claiming we were predetermining decisions, that it was collusive conduct etc. Cr Kellander’s email is provided below:

29 October 2023 – I responded to Cr Kellander later that evening stating:
“There was nothing in my request to have a discussion about the mayoralty that would constitute corruption, and any link with IBAC’s findings and recommendation in Operation Sandon is contrary to reason and judgement. To remind you of my request for the discussion, my email of 21 September 2023 is pasted below in full.
My email even noted “the election for these positions is conducted in the chamber on 10 November, and that the discussion during the briefing does not bind us to an outcome”.
I look forward to our discussions on Tuesday night and, like all Councillors, am keeping an open mind to any candidates that come forward.” 

31 October 2023 – Despite this, and not wanting the facts getting in the way of her public narrative, Cr Kellander posted the following on her Facebook page:

31 October 2023 – Councillors met to discuss potential candidates for the positions of Mayor and Deputy Mayor. Cr Kellander was the only Councillor not to attend. There was absolutely no predetermination about who would be Mayor or Deputy Mayor (and there were multiple councillors that expressed an interest as was seen during the public meeting to elect the Mayor and Deputy Mayor on 10 November.

Cr Kellander’s inaccurate and deliberately misleading comments became the subject of much media speculation against the council and the Mayor, with claims about predeterminations of the decision for the next mayor, “dodgy deals” and even attacks on me and my sex.

Arbitration Process

Both Cr Kellander and myself participated in the hearings and provided evidence. The following statements are from the Arbiter’s decision:

“Cr Kellander’s evidence comprised written material provided pre-hearing, and oral evidence given during the hearing. She gave evidence during the hearing that she did not believe it was appropriate to have a Councillor only meeting to have detailed discussions about upcoming mayoral elections. She believed that they acted to ensure the ‘deal has already been done’ to elect a mayor. She conceded that while it would be appropriate to discuss whether a councillor may want to run for Mayor with other councillors on an informal basis, it was not appropriate to do so at Council premises, with all Councillors invited, without the public being present. I note that the purpose of the meeting, according to Cr Briffa’s email, was also to air ‘any questions councillors have for each candidate, [and] what support the prospective candidates have from each councillor’.

In both the hearing and her written material, Cr Kellander referenced the Australian Constitution’s implied freedom of political communication and the extent to which this freedom is applicable to the Standards of Conduct from the Local Government (Governance and Integrity) Regulations 2020 (Vic). She cited the Councillor Conduct Panel Decision of Hely v Lew (2022) which had cited part of Kirby J’s judgment in Coleman v Power (2004) 220 CLR 1 (‘Coleman’). For example, in her pre-hearing written material she wrote, quoting some of Kirby J’s judgment:

‘the standards of my conduct when engaged in debate ought to be judged by the standards required of all politicians (including Federal politicians) … I am engaged in the struggle of ideas. In Australia I am entitled to use insult and emotion, calumny, and invective in my armoury of persuasion’ (p. 1).

Cr Kellander stated that she had not meant to imply that Cr Briffa was corrupt in calling the meeting. In the hearing she stated that she had read IBAC’s Operation Sandon report and conceded that the Operation Sandon investigation primarily involved findings of improper conduct by councillors in relation to planning matters, including for personal benefit, and that those matters could not be compared to the meeting called by Cr Briffa. In the hearing she also conceded that she understood why it might be inferred that was the implication she was trying to make, and offered to apologise to Cr Briffa.“

Arbiter Decision

“… I find that she [Cr Kellander] did breach this Standard when she referred to ‘Operation Sandon’ and ‘collusive conduct’ in relation to the meeting being called. The Australian Macquarie Dictionary (‘the Dictionary’) defines collusion to be, among other things, an ‘agreement or cooperation, usually secret, for the purpose of fraud, deception, or the gaining of an advantage at the expense of others.’

I find that referring to ‘Operation Sandon’ and ‘collusive conduct’ as an explanation for why she thought the meeting was inappropriate contains a clear implication that she believed that the meeting was collusive conduct. I make this finding despite Cr Kellander saying that it was not her intention to imply collusive conduct.

Collusive conduct is an extremely serious breach of public trust and allegations of collusion should not be made lightly. They could cause extreme damage to Cr Briffa’s reputation. These comments are clearly in breach of the need to ‘treat other Councillors … with dignity, fairness, objectivity, courtesy and respect’ (Standard 1). For this breach I order that Cr Kellander be suspended from the office of Councillor for a period of 7 days pursuant to my power under s 147(2)(b) of the Local Government Act 2020 (Vic). 

To access the full Arbiter Decision, click here: https://www.localgovernment.vic.gov.au/__data/assets/pdf_file/0021/206850/Briffa-and-Kellander-IAP-2023-20-Decision-1-March-2024.pdf