Chris Dobney & Hans Lovejoy
In February this year, Byron Shire Cr Rose Wanchap was censured for breaching council’s code of conduct after voting on and intervening with a council officer over a DA for a business that was to run in competition with one in which she had a shareholding.
But the censure was hushed up after a majority of councillors voted behind closed doors to keep it from the public.
Both Cr Wanchap and Cr Alan Hunter, who voted to keep her censure confidential, are standing for re-election and as mayoral candidates on Saturday.
The censure emanates from a complaint by David Beattie of Nungkari Treatment Centre, Myocum, in July 2015, whose allegations, including that the councillor had a pecuniary conflict of interest, were supported by some 150 pages of documentation.
While a pecuniary conflict was not sustained by the office of local government, in November it instructed council to investigate whether Cr Wanchap had a non-pecuniary conflict.
In December, council appointed barrister Nicholas P Harrison to look into the matter. He made his final report to council’s GM Ken Gainger on February 11 this year, a copy of which has been sighted by Echonetdaily.
In his final report, Mr Harrison wrote, ‘that the councillor be formally censured for the breach under section 440G of the Act, and that the matter be referred to the Chief Executive of the Office of Local Government for further action under the misconduct provisions of the Act.’
His findings were based on two specific complaints by Mr Beattie: that Councillor Wanchap failed to declare a significant non-pecuniary conflict of interests during a council debate on a Development Application; and that she used her official position to influence the outcome of the DA process.
Nungkari vs IMedicine
In August 2011, Cr Wanchap became a founding director and joint shareholder, together with her daughter Rene Dubois, in a company called IMedicine Pty Ltd, which later adopted the business names Byron Integrated Medicine and The Health Lodge.
Ms Wanchap’s name is included as a co-author of the company’s business case, dated April 17, 2014.
At the May 1, 2014 council meeting Cr Wanchap participated in the debate and voted against the DA for the Nunkari development.
A year later on April 23, 2015 IMedicine bought what is now The Health Lodge on Bangalow Road, Byron Bay.
Mr Harrison wrote that, ‘What is beyond doubt in my opinion is that the proposed hospital [The Health Lodge] was to be set up, at least in part, as an enterprise of the extended Wanchap family.
‘It would be a competitor with Nungkari Treatment Centre for the same or similar types of clients. As a consequence, the approval of the Nungkari project had the potential to adversely affect the financial viability of the proposed hospital.
In her defence, Cr Wanchap said she had no knowledge of the use of her name in the preparation of the business case, but Mr Harrison wrote that while he accepted Cr Wanchap was not involved in the preparation of the document, ‘I do not find it credible that a mother and daughter, being the only two directors and shareholders of a proprietary company, living only a few doors apart, could operate so independently of each other, such that their activities were unknown to each other’.
Cr Wanchap is at odds with the investigator’s findings, telling Echonetdaily, ‘That is not actually correct, as I was a guarantor of the loan for the purchase of a health centre one year after the vote was taken. I could not know that in the future, one year later that she would be purchasing the centre. When the vote was taken my daughter was a sole trader with a local medical centre and had been for the previous 14 years.’
Private interests vs public duty
Regarding Cr Wanchap’s response to the complaint, Mr Harrison wrote it did ‘not take into account the public perception of her private interests influencing her carrying out her public duty in relation to relevant Development Applications’.
Additionally her response ‘submits that Mr Beattie’s complaint is “vexatious in nature, trivial, frivolous and not made in good faith”.’
Mr Harrison wrote, ‘Such a submission, while the Councillor is entitled to make it, is not helpful in the face of my determination that the complaint material warranted a Code of Conduct investigation.’
‘The message is simple, yet it seems to have completely escaped the Councillor’s attention, or been beyond her comprehension. If the latter, the Councillor is not best qualified to perform that role.’
‘Apart from being an abrogation of her duties as a company director, such a claim does not well fit with the picture painted in the response, of the Councillor as an astute businesswoman.
‘I certainly do not accept what was also inherent in the response, namely that the Councillor was an innocent bystander to the activities of her daughter,’ Mr Harrison wrote.
He added that despite Cr Wanchap’s claims to the contrary there was ‘a substantial level of similarity’ between the treatments offered by the two facilities.
He continued that, ‘At no time [in the five month period that the matter inquiries of the General Manager or the OLG to ascertain any details of the complaint.’
‘I would have expected that the councillor would have felt aggrieved that such a complaint should reach the General Manager and the OLG and would have earnestly sought out the details. She did not do so.
‘This behaviour speaks eloquently of the Councillor not wanting to face up to the inevitable consequences of her behavior,’ he wrote.
In his findings he wrote, ‘I do not see how any councillor, in the position of Councillor Wanchap, could have failed to appreciate that the Code of Conduct applied. Any other conclusion could only have been reached by her wilfully, or out of complete ignorance of the provisions of the Code of Conduct. ‘
In the second matter, that of approaching a staff planner, Mr Harrison wrote that, ‘I formed the view that it was of much lesser significance than the first, in fact it appeared to be more an aggravating feature of the first complaint.’
He added, ‘it is to his credit that [the planner concerned] acknowledged the error in imposing one of the conditions.’
‘In my view, the nature and content of his response satisfactorily addresses the second complaint,’ Mr Harrison wrote.
Cr Wanchap told Echonetdaily, ‘I do believe it is a further attempt to distract voters from real policy but I will attempt to address this issue yet again. My vote had no bearing on the outcome of the DA as it was approved.’
‘Since the department has taken no further action in over six months and that term of council is now concluded I assume the matter is of no further relevance to them.
‘I had no involvement with my daughter’s company other than to support her when she registered the name in 2011.
‘The company had no holdings and the trust deed had not even been legally signed until May 2015 which was 12 months after the issue was voted on in council. I am not a practitioner and have not ever received any financial benefits from the company called IMedicine which has literally only been a shelf company since it was formed until 2015 which was a year after the DA for Nungkari came up.’
She continued, ’I think everyone accepts that the code is very complex and can be interpreted many different ways. I believe there are some half dozen codes against a number of other councillors, the Mayor included. Most are not made public for good reason because in most instances the complaints have been made for an improper purpose, vexatious and often lack merit. In most instances they are made substantially to intimidate or harass us as the decision makers in our official council duties to obtain leverage in their business or position in the community.’
‘I feel sure it must be a very serious fault to try to influence a councillor in the exercise of their functions.
Echonetdaily has contacted the Office of Local Government and Byron Shire Council for comment.