Councillors must have an open mind

Should councillors express a final opinion about a matter which will be considered by the council?

This is an issue which continues to trouble the public, councils, and councillors, particularly in relation to planning matters.

We are often approached by people with concerns that a councillor has strongly expressed their opinion or made known how they intend to vote on a matter before it has come to council for a decision.

Robust debate is an essential element of council deliberations. However, good governance requires councillors not to publicly express final views about a matter to be considered by the full council.

Our democratic process means that councillors come from diverse sections of the community and hold a wide range of views. However, once elected, councillors must act in the interests of the community as a whole.

In short, councillors have a duty to act fairly and with a genuinely open mind when making administrative decisions. These are decisions that affect the rights and interests of a person, group, or business more significantly than the general community. For example, a decision to grant or refuse a planning permit for a specific project.

This duty stems from the principle of natural justice (also known as procedural fairness). This principle requires a decision maker to be free from bias and to hear a person out before making a decision that affects their interests. This principle was applied in the case study below.

What is an open mind?

Councillors can express a preliminary view of a matter but must be prepared to reconsider their position if new evidence or arguments are put to them. This is known as having an ‘open mind’.

A councillor with an open mind will:

  • genuinely listen to all arguments
  • listen to the merits of the issue as a whole, despite a personal preference
  • consider all options and views presented
  • weigh up the merits and objections in relation to a matter.

Councillors must not express a final opinion on a matter prior to taking part in the decision-making process. In doing so, the councillor is showing they are not bringing an open mind to the situation.

Consequences of not having an open mind

If a councillor does not demonstrate an open mind, they can undermine public confidence in the fairness of the council’s administrative decision-making process.

It may also amount to a breach of the council’s councillor code of conduct or of the councillor conduct standards in the Local Government (Governance and Integrity) Regulations 2020. Most codes of conduct contain clauses about council decision making and the requirement to participate in this process impartially.

The councillor conduct standards require councillors to do everything reasonably necessary to ensure they perform the role of councillor effectively and responsibly. This includes representing the interests of the community and being responsive to the diversity of interests and needs of the community. A breach of the conduct standards may result in a finding of misconduct under the Local Government Act 2020.

In addition, the council’s decision could be subject to a legal challenge like in the case study below. A legal challenge will expose the council to the associated uncertainty and costs.

More information can be found in Ensuring Unbiased Democratic Council Decision Making, which can be found in the governance resources of the Local Government Victoria website.

Historic case study  - Winky Pop v Hobsons Bay City Council

In Winky Pop v Hobsons Bay City Council, Councillor A, lodged a submission with the council on a proposed planning scheme amendment relating to a strategic redevelopment area.

Councillor A declared a conflict of interest and did not take part when the council deliberated and voted to send the submissions to a panel. Councillor A then appeared before the panel and made further submissions.

When the council met to consider the panel’s report, Councillor A participated in a series of votes, including to exclude the parcel of land from the strategic redevelopment area.

The owner of the affected land brought legal proceedings against the council on the basis that Councillor A had prejudged the issue and that they had been denied procedural fairness.

The Supreme Court of Victoria’s decision, handed down in November 2007, found that Councillor A’s involvement was sufficient to invalidate the council’s decision.

By making an individual submission, Councillor A demonstrated that he had made up his mind prior to the formal consideration processes and therefore had not been open to persuasion during the formal consideration of the matter.

Councillor A was found to have prejudged the matter.