Winky Pop and Freedom of Speech
Background
The recent Supreme Court case of Winky Pop Pty Ltd v Hobsons Bay City Council [2007]
VSC 468 considered the responsibilities of councillors. There are two important
aspects of this case. First is the impact on councillors’ campaign statements and
voting entitlements. The second has been draft legislation attempting to codify
the Winky Pop principles. unChain Port Phillip contributed to the defeat of this
undemocratic Bill.
Winky Pop and unChain Port Phillip
In the Winky Pop case, the court considered the application to Councillors of the
principles of natural justice. In particular the court discussed the issue of prejudgment
in the considerations of Councillors: whether a fair minded and informed member
of the public might entertain a reasonable apprehension a Councillor voting on a
matter is not open to persuasion but rather has a predetermined fixed view on the
subject.
At paragraph 44 the court laid down three propositions:
(1) 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.
(2) The appropriate test, taking into account the political and legislative nature
of the role of a councillor, is whether the councillor, on the matter in question,
is open to persuasion, notwithstanding his or her previously held and expressed
views on the subject. In other words, to establish that a councillor is disqualified
from participating on a decision on the basis of prejudgment, it must be shown that
the councillor’s views were so demonstrably fixed that they were not open to being
dislodged by reason or argument.
(3) It is not necessary to prove actual prejudgment on behalf of a councillor. It
is sufficient if it is made to appear that a fair minded and informed member of
the public might entertain a reasonable apprehension that the councillor was not
open to persuasion on the matter in question, because of the councillor’s previously
held and expressed views on the matter, or because of the councillor’s previous
involvement in the issue in question.
Further the court said at paragraph 45
The party alleging disqualifying bias must establish that there is a prejudgment
of the matter, in fact, to the extent that any representations at variance with
the view, which has been adopted, would be futile. Statements by individual members
of Council while they may very well give rise to an appearance of bias will not
satisfy the test unless the Court concludes that they are the expression of a final
opinion on the matter, which cannot be dislodged.
unChain Port Phillip Councillors (if elected) acknowledge their obligation under
the Winky Pop principles to take into account all views on any particular matter
and that the Action Plans are not the ‘final opinion on the matter, which cannot
be dislodged’.
Winky Pop and the Action Plans
unChain Port Phillip has produced five ‘Action Plans’ for the City of Port Phillip’s next four years: on corporate governance, social justice, appropriate development, sustainable environment and financial management. The process of compiling the Action Plans compelled unChain Port Phillip candidates and supporters to consider a range of issues the Council will have to deal with in the next four years. By their very nature the Action Plans are general in nature, nonetheless they give the electorate a clear indication of the values, priorities and policies of unChain Port Phillip candidates - to help voters make an informed democratic choice when deciding their representatives. unChain Port Phillip recognises elected Councillors in office represent the whole constituency, not simply unChain Port Phillip members. In office, Councillors will have to take into account opinions of other Councillors, advice from Council officers and other experts and the position of all stakeholders. unChain Port Phillip Councillors (if elected) will comply with their legal obligation not to prejudge matters they are called upon to decide.
Winky Pop and Freedom of Speech
In October 2008 the Victorian Labor government proposed legislation claimed to clarify
the Winky Pop principles. The Local Government Amendment (Councillor Conduct and
Other Matters) Bill 2008 banned local Councillors from voting on issues if they
had made a submission relating to that issue, such as local development or planning
changes. The legislation would deem the Councillor to have a conflict of interest
and they would be prevented from voting or face an $11,000 fine. The bill passed
the state’s lower house. However a vigorous public campaign by unChain Port Phillip
was successful in persuading the Upper House to reject the Bill.
Section 78D of the Bill provided ‘A person has an indirect interest in a matter
if the person has become an interested party in the matter by—
(a) initiating civil proceedings in relation to the matter or becoming a party to
civil proceedings in relation to the matter; or
(b) exercising a right under the common law, an Act or regulation to—
(i) lodge an appeal in relation to the matter; or
(ii) make an objection or submission in relation to the matter.’
The Government's plan was undemocratic and a threat to freedom of speech. Expressing
an opinion is not the same as "having an interest". Active citizens would be deterred
from making submissions on planning schemes or council budgets or child care services
if they thought that they might subsequently run for election to Council. Alternatively
Councillors could be powerless to act on the issues they cared about strongly because
of past submissions. Potentially Councillors could be powerless to act on issues
they had campaigned on to get elected if they had made submissions on the issues.
The Bill was poorly drafted. Some examples of over-reach are these:
- A Councillor would be banned from voting if he or she had made a submission and
it was irrelevant what was said in the submission, whether for, against or neutral
on a proposal.
- It was irrelevant whether the submission was made to the council, another council,
or a state government or federal review.
- A Councillor could be an office bearer of a group or other entity and be held responsible
for the submission the group made. It could be a verbal submission made by speaking
at a council meeting. The legislation was retrospective so that any submission made
in the past could disqualify a Councillor from voting in the future. For example
the Bill meant that a parent who was on the executive of a Child Care Centre, which
had submitted something in support for more child care to the federal or state government,
could be unable to deal directly with children's services if elected to council.
The Bill amounted to a chilling restriction on free speech and democratic principles.
The Bill was also fundamentally misconceived. The Bill blurred two distinct matters.
There is a difference between having a personal or pecuniary interest in a matter
and having a view on a matter. Councillors who have a pecuniary or personal interest
in a matter are already obliged to declare their interest and abstain from voting.
This is quite different from expressing a view on a matter and subsequently seeking
election to council.
Commentators believed that the real reason behind the Bill was to muzzle local activists.
The Age stated:
‘The bill gives such an unprecedented broad interpretation of the notion of conflict
of interest that some might see a sinister political intent behind it. Activist
groups are a growing source of candidates in council and parliamentary elections,
and they do not always align themselves with major-party tickets. A government worried
at the rise of, say, the Greens in inner-city councils might well respond with just
such a bill as this’.
unChain Port Phillip played a lead role in mobilizing public concern about Section 78D of the proposed Bill. Candidate for Catani ward, Serge Thomann told the Age:
“You expect the people that are going to run for council are those with views and
passion about their communities, so they are obviously more likely to have made
a submission to their local council.”
Community outrage prompted the Coalition and the Greens in the Upper House to vote
down section 78D of the Bill.
These clauses were fundamentally misconceived and poorly drafted. They amounted to a fundamental attack on freedom of speech. unChain Port Phillip played a crucial role in defeating these undemocratic clauses. unchain Port Phillip will be vigilant to ensure that any future legislation does not traduce our fundamental democratic rights.
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