6 Moreton Bay Regional Council election
Focus of the public hearing Operation Belcarra focused on 18 allegations in relation to the 2016 local government election in Moreton Bay. These allegations involved perceptions that candidates had advertised
or fundraised as a group without advising the returning officer,109 and failed to give a disclosure return within the required time110 or provided a disclosure return containing information that they knew was false or misleading.111
The CCC required
the following people to attend the public hearing: Cr Allan Sutherland, Mayor of the Moreton Bay Regional Council (MBRC) Cr Peter Flannery, Division 2, MBRC Cr Mike Charlton, Division 9, MBRC Ms Kimberly James, unsuccessful candidate for Division 3,
MBRC Mr Tim Connolly, settlor of Moreton Futures Trust (MFT) Dr John Ryan, a trustee of MFT Mr Kirby Leeke, a trustee MFT Mr Robert Comiskey, donor to MFT Mr David Trask, donor to MFT and Cr Allan Sutherland Mr Michael Ravbar, State Secretary,
CFMEU Qld/NT Branch Mr Trent Dixon, adviser to Cr Allan Sutherland.
Allegations about candidates advertising or fundraising as a group without advising the returning officer It was alleged that a number of candidates, all sitting councillors, had advertised
or fundraised as a group during the election campaign without advising the returning officer. Four behaviours gave rise to perceptions that candidates were operating as an undeclared group: the use of joint how-to-vote cards the use of joint billboards
candidates receiving letters of endorsement from each other the payment of advertising expenses from a common source, namely Cr Allan Sutherland and MFT. An explanation of these behaviours helps to understand the CCC’s conclusions in relation to
Joint how-to-vote cards Mayor Allan Sutherland and a number of sitting councillors used joint how-to-vote cards in their 2016 election campaigns. For example, Cr Sutherland had joint how-to-vote cards with Cr Peter Flannery (Exhibit
64; see Appendix 9) and Cr Charlton (Exhibit 37; see Appendix 9). A number of how-to-vote cards had a similar design and featured the slogan, “For a bright future”. This was a slogan that had
109 Section 183, LGE Act.
110 Section 195(1), LGE Act.
111 Section 195(2), LGE Act. See also section 195(3) relating to a candidate who is a member of a group who allows the group’s agent to give a return
containing information that the candidate knows is false or misleading in a material particular.
CHAPTER 6: MORETON BAY REGIONAL COUNCIL ELECTION 29
previously been used by the council to promote the Petrie University site,112
also known as The Mill Priority Development Area.
The use of joint how-to-vote cards was an initiative of Cr Sutherland. He stated at the public hearing that he asked several individual councillors whether they would like to share a how-to-vote card
with him, largely as “a logistical decision” for himself.113 Some councillors declined. Among those councillors who accepted, some offered to pay for half of the costs involved, including Cr Charlton.114 Cr Sutherland nevertheless maintained that
he would pay in full, but emphasised that his contribution must be disclosed as a donation to the other councillors’ campaigns.115
Joint billboards Several of the sitting councillors who had joint how-to-vote cards with the mayor also shared joint
billboards. One billboard featured Crs Sutherland and Flannery, while others featured Cr Sutherland with various other councillors (for example, Exhibits 38 and 40). Again, these billboards were all initiated by Cr Sutherland and the costs were paid for in
full by him.116 The other councillors involved nevertheless agreed to the production and use of the billboards, and Cr Charlton was listed as a contact on the invoice for his joint billboard (Exhibit 41).
Letters of endorsement Four of the sitting councillors
who had joint-how-to-vote cards with the mayor also received letters of endorsement from Cr Sutherland. These letters were again offered to councillors by the mayor. In them, Cr Sutherland endorsed the councillor’s efforts, noting major projects they
had helped to deliver for their divisions, and stated that he supported their re-election to council. The cost of mailing out these letters to electors was again paid for in full by either Cr Sutherland or MFT.117
A common funding source As noted
above, Cr Sutherland offered to, and did, either pay or arrange for MFT to pay in full for all of the joint advertising and promotional materials he arranged with other councillors. Notably, 63 per cent of Cr Sutherland’s own campaign funding ($118 587.05)
came from MFT (see Exhibit 72). In summary: MFT paid for expenses relating to Cr Flannery ($3677), Cr Houghton ($2873) and Cr Greer ($2488.35; see Exhibit 49). Each of these amounts represents the councillor’s share of the joint advertising and promotional
materials they received. Cr Sutherland paid directly for expenses relating to Cr Charlton ($2501), Cr Houghton ($855) and Cr Winchester ($855).118 Each of these amounts represents the councillor’s share of the joint advertising and promotional materials
Conclusions Candidates who engaged in the above activities were of the view that they had not formed a group of candidates as defined in the LGE Act. For example, Cr Sutherland stated in the hearing:
…I'd adopt the attitude
that most people looking at that by arrangement would see that as the sitting council, not a group. They would see Mick Gillam and Allan Sutherland. They know Mick Gillam is their sitting councillor and Allan Sutherland is their Mayor. I wouldn't suggest it's
112 Evidence given by Peter Flannery, p. 8.
113 Evidence given by Allan Sutherland, p. 9.
114 Evidence given by Michael Charlton, p. 9.
115 Evidence given by Allan Sutherland, p. 10.
Evidence given by Allan Sutherland, p. 14.
117 Evidence given by Allan Sutherland, p. 13.
118 As per Cr Sutherland’s third party disclosure return available on the ECQ website.
30 OPERATION BELCARRA
as such but more as a council. They're the sitting councillors. (Evidence given by Allan Sutherland, p. 12)
Despite such claims, the CCC formed the view that Cr Sutherland having and paying for joint how-tovote cards, joint billboards and the mail out
of letters of endorsement for a number of other councillors can be considered conduct that promoted the election of the candidates, and that those candidates should have registered as groups. However, the CCC determined that commencing a prosecution for an
offence against section 183 of the LGE Act was not in the public interest in these circumstances because: The how-to-vote cards were approved by the ECQ, which knew or ought to have known that the candidates had not registered as a group. The candidates
are likely to have inferred from the ECQ’s approval that their conduct was not contrary to the LGE Act. This type of conduct has occurred in a number of prior elections and has not been subject to any censure by the ECQ or other authority. The current
definition of a group of candidates is broad and ambiguous, and is likely to capture conduct that was not intended to be captured (see further discussion in Chapter 11). The activities discussed above were largely transparent in that joint how-to-vote cards,
joint billboards and letters of endorsement would have clearly conveyed to anyone who saw them that the candidates were supportive of each other. Further, contributions for advertising were declared by the candidates in their disclosure returns. In any
event, a prosecution for an offence against section 183 of the LGE Act must be commenced within 12 months from when the offence occurred (i.e. any prosecution must have been commenced by 20 March 2017).
Allegations about candidates failing to comply
with disclosure obligations It was alleged that some of the Moreton Bay candidates who appeared before the public hearing had failed to disclose donations. Two groups of allegations were examined at the public hearing: Cr Sutherland’s and Cr
Flannery’s disclosure of donations from MFT Ms Kimberly James’s failure to lodge a disclosure return by the due date.
Cr Sutherland’s and Cr Flannery’s disclosure of donations from Moreton Futures Trust
Trust As noted above, a number of Moreton Bay candidates had expenses paid for by a third party entity known as Moreton Futures Trust (MFT). MFT was established in 2010. A deed dated 7 April of that year proposed to establish MFT “to support the election
campaigns of certain candidates in the Moreton regional Council area” (Exhibit 45). Evidence was given at the public hearing that MFT had evolved from an earlier group called Friends of Pine Rivers. This was established in the early 2000s to help fund
candidates for the Pine Rivers Shire Council, which was subsequently merged with several other local government areas to form the MBRC.119
MFT has supported MBRC candidates in both the 2012 and 2016 elections. In relation to the 2012 election, one of
MFT’s trustees,120 Mr Kirby Leeke, stated at the public hearing that the trustees had decided that MFT would support Mayor Allan Sutherland.121 MFT’s disclosure return for 2012 indicated
119 Evidence given by Dr John Ryan, p. 4.
120 The original trustees were Mr Bryan Galvin, former Deputy Mayor of the Pine Rivers Shire Council, and Dr John Ryan. Mr Galvin was replaced as trustee by Mr Leeke in November
2011 (Exhibit 51).
121 Evidence given by Kirby Leeke, pp. 8–9.
CHAPTER 6: MORETON BAY REGIONAL COUNCIL ELECTION 31
that it received $132 695 in donations and donated $60 000 of this to Cr Sutherland for
his campaign.122 In relation to the 2016 election, Mr Leeke gave evidence that MFT’s trustees had again determined to support Cr Sutherland, and only Cr Sutherland.123 MFT’s disclosure return for 2016 indicated that it received $137 000 in donations
and made payments of $127 625.40 (Exhibit 49). As identified on page 29, the majority of this expenditure was indeed for the benefit of Cr Sutherland ($118 587.05), although three other councillors, including Cr Peter Flannery, also disclosed donations from
MFT for their share of joint advertising.
In examining how funds were raised by MFT, the CCC determined that Mr David Trask, a property developer, appeared to be the only person actively soliciting funds for the trust. According to Mr Trask, he knew
that MFT was supporting Cr Sutherland in the election campaign and he advised donors that they could donate either directly to Cr Sutherland or to MFT.124 MFT’s disclosure return shows that the majority of its funds came from donors who were involved
in property development and construction (see further discussion in Chapter 12).
According to Mr Trask, the benefit of donations being directed to MFT was that someone else would take care of the administration of money on behalf of Cr Sutherland.125
In contrast to 2012, where MFT gave money directly to Cr Sutherland, Cr Sutherland arranged for his wife to send invoices for his 2016 campaign expenses to one of the trustees for payment.126 Mr Leeke stated that he would decide whether to pay particular invoices
that were sent to him by Cr Sutherland’s wife. Some invoices he approved and paid and some he rejected.127
Crs Sutherland and Flannery The CCC examined disclosure returns and bank accounts for Crs Sutherland and Flannery and found that both
councillors had recorded all of the gifts they had received from MFT (and other donors) in their returns. However, the details about MFT that the councillors recorded in their return did not comply with section 109 of the LGE Act. Specifically, the returns
did not state the names and residential or business addresses of MFT’s trustees as required.
The CCC does not suggest that this omission was done dishonestly or as a deliberate attempt to hide details about MFT. At the public hearing, Cr Sutherland
stated that he had only become aware of the requirement that week.128 Cr Flannery similarly gave evidence that the requirement was not clear to him, and that he had simply done as Cr Sutherland had in his 2012 return.129 The CCC identified that many candidates
failed to provide these and other “relevant details” as defined in section 109, and this is discussed further in Chapter 12.
The CCC formed the view that Cr Sutherland and Cr Flannery should both have recorded additional details about MFT’s
trustees in their disclosure returns. Nevertheless, the CCC determined that the systemic nature of this issue and the fact that the ECQ has not taken action about previous noncompliant returns meant that it was not in the public interest to refer these matters
to the ECQ for consideration of any prosecution proceedings it considers warranted for offences against section 195(1) of the LGE Act. The CCC determined there was insufficient evidence to commence a prosecution against Cr Sutherland or Cr Flannery for an
offence against section 195(2).
122 MFT third party disclosure return available on the ECQ website.
123 Evidence given by Kirby Leeke, pp. 13–15, 21.
124 Evidence given by David Trask, p. 13.
125 Evidence given by David Trask,
126 Evidence given by Allan Sutherland, p. 24–5.
127 Evidence given by Kirby Leeke, p. 20.
128 Evidence given by Allan Sutherland, p. 19.
129 Evidence given by Peter Flannery, p. 10.
32 OPERATION BELCARRA
Ms Kimberly James’s failure to lodge a disclosure return by the due date At the public hearing, CFMEU State Secretary Mr Michael Ravbar stated that the 2013 introduction of specific workplace laws relating to the local government
sector prompted the CFMEU’s interest in the 2016 local government elections.130 Mr Ravbar indicated that the CFMEU determined to advocate against those laws by assisting the campaigns of like-minded candidates.
The CCC was aware from the CFMEU’s
third party donation disclosure return that one candidate the CFMEU had supported in 2016 was Ms Kimberly James, a Division 3 candidate in Moreton Bay. Mr Ravbar confirmed at the public hearing that the CFMEU had provided financial support to Ms James’s
election campaign totalling $32 155. The CFMEU submitted a third party disclosure return to the ECQ detailing the gifts it gave to Ms James (Exhibit 131). The CFMEU also gave Ms James a financial statement detailing the amount, dates and type of support it
had given Ms James to help her in preparing her own disclosure return (Exhibit 128).
According to information from the ECQ, Ms James had failed to lodge a disclosure return by the due date of 4 July 2016. Ms James was initially interviewed by the CCC
on 26 May 2017, and during that interview Ms James admitted that she had failed to lodge a disclosure return in compliance with section 117 of the LGE Act. During her evidence at the public hearing, Ms James again confirmed that she was aware of her obligation
to lodge a disclosure return as a candidate and that she had failed to do so.131 Ms James stated that after her interview with the CCC, she immediately attended to this issue and lodged a return with the ECQ on 29 May 2017.132 The CCC was subsequently advised
by the ECQ that it had received Ms James’s disclosure return.
The CCC formed the view that Ms James had failed to submit her disclosure return within the required time. The CCC determined there was sufficient evidence to refer this matter to the
ECQ for consideration of any prosecution proceedings it considers warranted for an offence against section 195(1) of the LGE Act, but that it was not in the public interest to do this given Ms James has now submitted her return.
130 Evidence given by Michael Ravbar, p. 4.
131 Evidence given by Kimberly Ann James, p. 14.
132 Evidence given by Kimberly Ann James, pp. 14–5.