This is the fourth in a series of articles by Ron Exiner* looking at approaches Local Government can take to cement its place as a vital sphere of government for communities as well as an equal partner in our Federation.
To be sustainable, Local Governments need to be able to balance their democratic rights and responsibilities as a level of government with their further role as a quasijudicial body determining administrative law outcomes.
As the local planning authority, Local Governments are determining outcomes of individual permit applications, based on the local policies that they have put into place and other relevant legislation. The issues that these two roles can raise have been highlighted in Victoria by a 2007 Supreme Court decision that quashed a council decision on a planning amendment, based on the prejudgement exhibited by one Councillor. This case has come to be known as the Winky Pop case, as Winky Pop Pty Ltd was one of the companies involved. The judge determined that because one Councillor had put an individual submission to the council opposing the amendment, and that the amendment had failed by one vote, the applicant had not been given a fair hearing due to the prejudgement that had been exhibited by that Councillor.
Some elements in the Local Government sector have reacted very strongly to this decision, declaring that it represents a basic challenge to democratic Local Government. That is, if Councillors and candidates can’t express their strong views on particular issues, local democracy is under threat. This viewpoint has it that if candidates in an election have campaigned around a forthcoming planning decision or if Councillors have expressed their views prior to the decision being made, they must disqualify themselves from being part of the decision on the grounds that they have exhibited prejudgement.
I suggest that this represents a significant over reaction. Winky Pop can be addressed through a combination of good governance and some necessary discipline on the part of Councillors and candidates.
In September 2008, Julian Burnside SC presented a workshop on Winky Pop on behalf of the Municipal Association of Victoria.
I attended, and some of the legal concepts
I have used to illustrate my basic proposition are attributable to my understanding of what Burnside was saying. He also stated that the case had given rise to a new verb – ‘to Winky Pop’ and to be ‘Winky Popped’.
Regarding Winky Pop as an attack on democratic Local Government actually creates a threat to Local Government’s future, particularly in the planning area. The issue of prejudgement is an ages old legal concept that pertains to natural justice and is not going to be changed in order to suit a few Councillors.
If there is continued questioning of the capacity to reconcile local democracy with the application of administrative law, the most likely State Government response will be to take away planning powers from Local Governments.
The legal response to Winky Pop is best expressed by lawyers, but my understanding is that Councillors can protect themselves from being Winky Popped by actively demonstrating that although they may have had an opinion prior to the decision being made, they were open to persuasion when the applicant had their opportunity to express their views in the decision making process.
This is wise advice for individual Councillors. However, when addressing local governance issues, I suggest that too much emphasis is being placed on how individual Councillors behave and not enough focus exists on structural governance approaches.
Protection from Winky Pop should be afforded by good governance processes that should apply in all areas of Local Government activities. The first important element of this is a good understanding of the different roles of Councillors. Amongst their various roles, two are of particular importance.
Councillors have a democratic governance role in which they are planning for the future and making policy. Here they are dealing with matters of general application to their communities. In this role, it is right and correct for Councillors to express strong opinions as they seek to represent their constituents and provide leadership.
However when they become the local planning authority, the Councillors’ role is being part of an administrative law process in which they are applying policy to individual cases and where they are bound by rules of natural justice. In these situations, Councillors can’t give free rein to their individual opinions. Their opinions, which may have been highly relevant and appropriate at the policymaking stage, are not relevant when the policy is being administered. They are not only irrelevant, but may give rise to accusations of bias and prejudgement.
If Local Governments and Councillors want to retain their local planning role, they will need to accept the constraints that reconciling their democratic and quasijudicial roles entail.
We would rightly be horrified if a judge expressed his or her opinion on the merits of a case in the press or at a prehearing meeting, prior to the case being heard. It is not stretching the point too much to say that Councillors are in a similar position.
While Councillors (and candidates) can’t always be expected to say nothing about a forthcoming planning application that is exciting community interest, they must express themselves in terms such as “based on the information I have at present, my view is…” rather than “over my dead body will this application get through”.
If they are not prepared to exercise this discipline over themselves, they themselves threaten Local Government’s future role as a local planning authority.
This type of discipline can also have a positive impact in assisting communities in understanding the issues around local planning.
An important basis of local planning is that communities have an opportunity to be consulted on what is happening in their neighbourhoods. If Councillors and administrations understand and act accordingly to the different roles, they can help to educate communities on the difference between policymaking, where general community input and opinion are relevant, and individual planning decisions based on policy, where general opinions have far less carriage.
The other key element of good governance that is relevant is that of good decision making processes. Councils and Councillors can protect themselves from being Winky Popped by being able to demonstrate good processes during which all the relevant information is made available to Councillors and in a way that facilitates good decision making processes.
This includes quality council reports, briefing sessions that enable Councillors to come to grips with the relevant policy issues, appropriate consultation processes and well conducted council meetings in which skilful chairing ensures that all the issues are brought into the open and are able to be considered prior to the decision being made.
Being able to point to good decision making processes and the quality of the advice and information they considered should enable Councillors to demonstrate that while they may have had views on an issue prior to formally considering it, they were indeed open to persuasion and did consider all the material before them prior to putting up their hand to vote.
It is also worth noting that good policy makes for good individual decisions. Local Governments need to ensure that the energy and passion often that are exhibited in the debates around controversial individual planning applications, are put into the policy development processes.
This is particularly important given the number of decisions that are made by delegated officers, based on the existing policies. State Governments also have an important role in supporting Local Governments in their policy development.
Sustainable Local Government means that Local Governments need to understand and accept the complexity of their different roles. These roles provide enormous opportunity to provide leadership and direction for their local communities, but also require a level of discipline among Councillors and officers to ensure that these roles are performed in a way that provides the appropriate balance between the general rights of the community and the individual rights of its members.
These roles need to be supported by good decision making processes, which help ensure policy decisions that meet Local Government’s goals, and individual decisions that reflect policies and are fair to the individuals involved.
*Ron Exiner has held senior management positions in corporate, executive and financial services in various Victorian councils, spanning more than 20 years. As Director of Exintel Pty Ltd, a consultancy focusing on governance, strategic planning and policy development, he prepared the Good Governance Guide (2004) for the Good Governance Advisory Group (Victorian Government, Municipal Association of Victoria and Victorian Local Governance Association), and Excellence in Governance for Local Government (2005) for CPA Australia.
