We have spent a large part of today seeking legal opinion as to the claims of ‘conflict of interest’ which are currently sidelining 4 councillors from voting on the C60 Amendment and the Centre of the Racecourse Planning application. Some background first.

The Councillors Racecourse Committee was established as a Special Committee to oversee Council and MRC ‘business’. The major rationale behind this was, as we understand, that since several councillors were trustees, and others were under threat of being ‘winky popped’, that council would not have a quorum in order to carry out its duties. The Special Committee was therefore created with full powers of delegation. Thus it became ‘law’ that four councillors were to determine the future of all matters relating to the Racecourse. That is, according to Glen Eira Council and their way of doing things!

This approach however is certainly questionable, and definitely not universal. Port Phillip City Council in 2008 (following the Winky Pop decision) also created a Special Committee under Section 86 of the Local Government Act to oversee the planning processes of a proposed development in their municipality. In stark contrast to Glen Eira however, their committee comprised:

community representatives, members with planning expertise, and councillor representation. The panel should have an odd number of members for voting purposes, so an appropriate makeup might be two community representatives, two members with planning expertise, and one councillor.

 Fully aware of the Winky Pop decision, the report went on to state: 

It should also be noted that part of the Winky Pop Supreme Court judgement by Justice Kaye reads:

“In determining whether there was prejudgment on behalf of a councillor, it must be borne in mind that councils are democratically elected, and that councillors necessarily carry out political and legislative roles. Accordingly, 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.”

3.11. It seems likely that the judgement made about councillor actions in Winky Pop could also be applied to other members of a committee or panel with statutory planning powers.

3.12. Therefore, if a panel was established to decide on the planning application for the Kyme Place site, then people who have fully prejudged the matter should not participate in the voting and decision making process (bearing in mind Justice Kaye’s words that previously holding or expressing views does not automatically constitute prejudgement).

Clearly, the council would want to include high quality community, expert and councillor representation on this panel to decide the planning application. It is likely that this representation would include people who have previously held an opinion or expressed a view.

 These officer recommendations were carried by Council. (23rd June, 2008) 

So why is one Council so restrictive, and another capable of working within the parameters set by the Winky Pop decision, yet still maintaining direct community input and full voting rights for the majority of councillors? Is it really a case of ‘conflict of interest’ and Winky Pop, or merely what Penhalluriack labelled as ‘anti-community and anti-democratic’ – but not from the legislation alone in this case, but its interpretation by certain individuals within Council. 

The legislation covering councillor ‘conflict of interest’ has now been extended and elaborated upon. There are two kinds – ‘direct’ and ‘indirect’ conflict of interest. The former largely involves ‘pecuniary’ advantage and the latter, advantage of family and other relationships. In the context of the Racecourse however, we do not believe that trustees have a ‘conflict of interest’. This is based on the fact that:

  • Councillor trustees are not paid for their “services” – hence there is no pecuniary interest and since the legislation was amended, hospitality is no longer applicable
  • The MRC is technically a ‘not for profit’ organisation and hence the legislation exempts such groups from the conflict of interest provisions, and
  • Council does not ‘select’ the trustees – they merely put forward several councillor names. Selection is thus not the province of the Council

Given the above, it is therefore perfectly reasonable to argue that both Magee and Tang are exempt from the ‘conflict of interest’ provisions which would prevent them from participating in the C60 and centre of the racecourse decision making. That leaves at least 7 councillors (and the possibility of  all of them) to partake in the decision making. The need for a quorum is thus fulfilled and the existence of the Racecourse Committee with its delegated powers becomes unnecessary.

At the last council meeting the arguments opposing the abandonment of this Special Committee were all about ‘risk’ – risk from a challenge by the MRC, risk about process, risk about liability. We maintain that the greatest risk to the community lies with allowing a Committee of 4 individuals exercising their delegated powers when there is no legitimate reason for them to do so. The Committee should be disbanded, its delegation powers removed, and the vote taken in a normal council meeting where the vast majority of councillors may present their arguments and vote.