Australia: Winky Pop and the quasi-judicial role of council

Last Updated: 28 July 2015
Article by Philip Mavor

As elected representatives it is expected that councillors may have opinions on issues that come before them in the course of their deliberations. This is a normal expectation of a democratic decision making process.

However, it is also expected that when considering matters that might adversely affect a person's rights and interest, councillors will bring an open mind to those matters, free from bias and open to persuasion.

Council decisions can run the risk of being overturned if a court finds that a councillor involved in the relevant decision had prejudged the matter, and was not open to persuasion at the time of determining the matter as decision maker.

A Quasi-Judicial Function

The High Court in IW v City of Perth [1997] 191 CLR 1 found that a council exercises a 'quasi-judicial' function when making a decision in the exercise of a statutory discretionary power which may affect the rights and interests of an individual or a corporation, including when deciding to approve or not to approve an application for planning or development approval.

An operational decision that affects members of the municipality generally is not a quasi-judicial decision. This would include a decision by council to impose a rate or a charge for services provided to ratepayers generally.

Councillors must act in a 'judge like' manner when performing quasi-judicial functions. This means that councillors must show no bias, and make a decision on the merits of the case based on the facts and the law applying at the time.

The Test for Bias

Bias arises when a decision is not based on the merits of the case, but is 'prejudged' or it appears that way.

The principle is that those who will determine a matter should not demonstrate in advance that they have already made up their mind about it, although a councillor is not necessarily disqualified from participating in a decision because the councillor, previously, has held and expressed views on the matter in question.

What is important is that elected members should be able to reconsider their views in light of all the evidence and arguments presented at the time of making a decision that may directly affect the interests of an individual or business.

The test for bias is whether the decision makers' mind is 'open to persuasion' when determining the application as decision maker: MIMA v Jia (2001) 205 CLR 507.

To avoid prejudging a planning decision (by way of example), councillors:

  • must not make up their minds about a development application until they have read the officer's reports and heard all the meeting debate;
  • must consider all relevant facts, and not consider irrelevant factors when making their decisions;
  • must make a decision by applying the law and council policies as they exist, not on what they would like them to be or on their personal moral viewpoints;
  • must not make their own inquiries on an application. A councillor wanting more information on a development application should request that information from the CEO (any involvement that a councillor has with a development application has the potential to damage the integrity of the final determination); and
  • should refrain from public comment that could be construed as support or opposition of an application, or trying to influence the public during a public comment period of a development application.

The Winky Pop Decision

In Winky Pop Pty Ltd v Hobsons Bay City Council [2007] VSC 468 (an elected council member lodged a submission with the council on a proposed planning scheme amendment relating to a strategic redevelopment area.

The councillor declared a conflict of interest when the council deliberated and voted to send the submissions to a panel. The councillor appeared before the panel and made further submissions.

When the council convened to consider the panel's report the councillor participated in a series of votes, including to exclude the parcel of land from the strategic redevelopment area.

The Supreme Court found that the councillor's involvement was sufficient to invalidate the council's decision. By making an individual submission the councillor demonstrated that he had made up his mind in advance of the formal consideration processes and therefore had not been open to persuasion otherwise through formal consideration of the matter. He was found to have prejudged the matter.

A Councillor May Have A Viewpoint

A councillor may have a strong view as to how their community should develop and the desirability of particular types of development.

The councillor may bring a predisposition in favour of a particular point of view to the process of making a determining, as long as he or she also retains an 'open mind' and remains prepared to listen to any contrary argument, weigh up information and a range of competing values and perspectives, and be open to be persuaded.

The councillor does not have to be persuaded by the correctness of a contrary view, but he or she must give that view full consideration before rejecting it.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Philip Mavor
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