Impartial decision-making
Please find below the Impartial decision-making section of the Yarra Councillors' Code of Conduct:
11. Impartial decision-making
Councillors should not express an opinion or appear to have formed a view on a matter which they may be required to vote on at a future time. Councillors must have an open mind about the issues being debated, ask questions and hear all the facts before a decision is made at a Committee or Council meetings. If a view is expressed, it is advisable that the Councillor excuse themselves from Committee or Council meetings where the matter is being considered.
11.1 Primary principle of Councillor conduct:- Section 76B of the Act
“It is a primary principle of Councillor conduct that, in performing the role of a Councillor, a Councillor must—
(a) act with integrity, and
(b) impartially exercise his or her responsibilities in the interests of the local community, and
(c) not improperly seek to confer an advantage or disadvantage on any person.”
11.2 Winky Pop and Decision making:
Winky Pop Pty Ltd & Ors –v– Hobsons Bay City Council (2007 VSC 468)
This key decision highlights the twin roles of Councillors as both elected representatives and also officers of government with quasi-judicial powers and demonstrates that a legitimate expression of policy or a political view in one role, may in the other, be a demonstrable prejudgment.
Potentially any formal decision, made by a Councillor on a property or planning matter, may be criticised, appealed and possibly also overturned, where the Councillor has, or may be perceived to have, a position, view or has made statements, about the subject matter under consideration, prior to making the decision.
The issue will be determined by the manner in which Councillors conduct themselves when dealing with issues that are of concern to the particular Councillor while acting in these twin roles.
The law requires that the political and legislative duties entrusted to the Council and the functions of the Councillor be implemented properly. A hearing should not take place before a body that has already made a decision which is irreversible. The processes of considering matters and making decisions should not be rendered illusory by reason of prejudgment or bias by decision makers.
The test will be whether the objectors or supporters of the subject matter of the decision have been heard by Councillors who are capable of being persuaded.
All Councillors will have key issues in their political platform. Where Councillors continue to actively promote and agitate the issue while in office they may be required to excuse themselves from voting on decisions that affect those key issues.
Councillors will be able to vote on decisions that affect the issues of their platform only where the key issues of their political platform are isolated and quarantined from the decisions that Councillors make in their quasi-judicial role in planning and property.
In order to avoid potential for criticism of a Council’s decisions on planning and property matters, Councillors:
• should pay careful attention to how they conduct themselves in matters that involve the consideration of rights of parties in a quasi-judicial setting
• should isolate and quarantine advocacy for the key issues of their political platform from the process of making decisions that affect the issues of their platform
• should be able to demonstrate that the objectors or supporters of the subject matter of a decision have been heard by Councillors who are capable of being persuaded
• where there is any doubt, ensure that they seek advice or abstain from voting on decisions that affect the key issues of the Councillor’s political platform.
Further information
Ivan Gilbert
Executive Manager - Governance
9205 5110
Ivan.Gilbert@yarracity.vic.gov.au
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