Email to Council from Ingrid Skirka
Social Media Policy Amendments (Clr Smith Motion) – Ministerial Warnings on Code Weaponisation & Surcharge Risk
Ministerial Warnings on Code Weaponisation & Surcharge Risk
Lisa Miscamble (General Manager)
Danielle Lidgard (Manager Governance & Corporate Performance)
Mayor Jesse Fitzpatrick
Deputy Mayor Erin Foley
Councillor Heather Champion
Councillor Therese Duffy
Councillor James Farrell
Councillor David Kent
Councillor Sara Moylan
Councillor Rachel Russell
Councillor Nicole Smith
SUBJECT: URGENT FOLLOW-UP SUBMISSION: Social Media Policy Amendments (Clr Smith Motion) – Ministerial Warnings on Code Weaponisation & Surcharge Risk
Dear General Manager, Manager Governance, Mayor Fitzpatrick, Deputy Mayor Foley, and Councillors,
I refer to my formal submission dated 24 July 2026 regarding the draft amendments to Council’s Social Media Policy, arising from Councillor Nicole Smith’s Notice of Motion of 17 June 2026, which recently concluded its 28-day public exhibition period. I sent my formal submission to all councillors, including those who either did not vote for it or had recused themselves.
I write to draw Council’s immediate attention to critical developments at the recent NSW Parliament Budget Estimates hearing. Local Government Minister Ron Hoenig issued unequivocal public warnings regarding local councils weaponising internal governance tools, codes of conduct, and workplace health and safety (WHS) frameworks to suppress political discourse or pursue factional feuds.
Crucially, Minister Hoenig explicitly stated his intention to exercise rarely-used financial surcharge powers against councils and individual decision-makers who abuse administrative processes and waste public resources on weaponised complaint mechanisms.
Understanding the Legal & Personal Impact of a Ministerial Surcharge
For the benefit of the executive and the chamber, it is vital to be crystal clear about what a statutory surcharge under Section 435 of the Local Government Act 1993 (NSW) actually means:
- Direct Personal Financial Liability: A surcharge is a formal statutory order directing an individual councillor or officer to personally repay council funds lost, unlawfully spent, or incurred through improper or negligent acts.
- No Insurance Shield: Standard civic liability and professional indemnity insurance policies do not cover deliberate, ultra vires, or bad-faith decisions. Where decision-makers act outside statutory authority or persist with unlawful policies despite formal legal warnings, insurance protection is rendered void. Individual councillors who vote to enact or enforce such mechanisms face paying legal fees, damages, and administrative costs directly out of their own pockets.
- Protection & Insurance Coverage for Opposing/Recused Councillors: In contrast, pursuant to Section 731 of the Local Government Act 1993 (NSW), councillors who act in good faith, specifically those who vote against an ultra vires motion, raise formal objections, or recuse themselves (in this case Councillor Rachel Russell, Councillor Heather Champion and Councillor Sara Moylan) remain fully indemnified. Their statutory protections and insurance coverage remain completely intact because they have upheld their duty of care and refused to participate in an unlawful administrative process.
Validation of Initial Administrative Law Grounds
Minister Hoenig’s public stance directly validates the administrative law grounds detailed in my initial submission:
- The Surcharge and “Good Faith” Exposure: A surcharge applies where council funds are improperly expended or legal liabilities are incurred through deliberate or negligent misconduct. Now that the chamber and executive are on formal notice regarding the ultra vires nature of immediate, unilateral user-blocking (Items 2c/2d) and its infringement on the High Court Implied Freedom of Political Communication, any councillor voting to adopt these non-standard provisions exposes Council to costly legal challenges that cannot be defended as “good faith” governance or shielded by council insurance.
- Alignment with Minister Hoenig’s Mandate: The Minister reiterated the fundamental democratic principle that “councillors run the council, not the bureaucrats,” while signaling zero tolerance for using WHS and psychosocial safety as blanket shields against legitimate public scrutiny and civic debate.
Recommended Action for Council
To protect Wingecarribee Shire Council from severe legal vulnerability, administrative appeal, and Office of Local Government (OLG) intervention, I formally request that:
- The General Manager and Legal Counsel issue formal advice to the chamber recommending that the proposed amendments under the Councillor Nicole Smith Motion be withdrawn or defeated.
- The Chamber formally resolve to adhere strictly to the standard Office of Local Government Model Social Media Policy, without inserting non-standard, unilateral blocking mechanisms or broad redefinitions of psychosocial risk that exceed statutory power.
Best practice dictates dissolving these flawed amendments before they are brought to a final vote. Standard OLG frameworks already contain robust mechanisms to address unlawful abuse or genuine threats without infringing on natural justice or democratic oversight.
Please accept this submission in the spirit in which it is intended: as a sincere effort to support our chamber and protect the personal livelihoods of those who serve it. Our community is at its best when councillors as leaders, can represent their constituents openly and transparently.
Dissolving these amendments is not a defeat, but a protective measure that safeguards both democratic speech in the Southern Highlands and the personal finances of the people we elect to lead us.
I request that this follow-up correspondence be registered, indexed, and distributed to all councillors alongside the formal post-exhibition staff report.
Sincerely,
Ingrid
Ingrid Skirka