Thursday, October 23, 2008

When Democracy cuts its own throat...

To get some sort of handle on what sort of government we, the people of Victoria, have elected, get a load of this story in this morning's edition of The Age: "'Indirect interest' rule slap in face of democracy: Burnside".

There have long been rules prohibiting elected officers in parliaments and local councils from voting on an issue in which they have a "direct" or "indirect" interest. But the "LOCAL GOVERNMENT AMENDMENT (COUNCILLOR CONDUCT AND OTHER MATTERS) BILL 2008", which was passed in the lower house on October 9th and is now up for review in the Legislative Council, has redefined "indirect interest" to include the following situation:
"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.".
Apparently, part A is supposed to relate to civil proceedings at VCAT level (to stop individuals getting elected to local councils to get results which they have failed to achieve in civil litigation) - which may or may not be an infringement of democratic rights - but the second part, part B, relates to just about any issue at all.

Under this proposed law, if you have felt strongly enough about an issue to make a submission on it (as you are entiteld to do as a free citizen under law), and if you then feel so strongly about it that in order to get something done about it you get yourself elected as a councillor, LO AND BEHOLD, you're not allowed to vote on the issue because you have an "indirect interest".

This is Democracy cutting its own throat.


At Thursday, October 23, 2008 12:12:00 pm , Anonymous matthias said...

It is just another example of why State Governments need to be removed and replac ed with regional government. More importantly it is reason enough to vote out the Brumby Government ,as they are arrogant,out of touch and anti family

At Thursday, October 23, 2008 4:05:00 pm , Anonymous Peregrinus said...

Actually, this is a bog-standard application of a pretty fundamental rule of fairness and fair procedures: no-one gets to be judge in his own cause. You make an objection or a submission or an appeal to a government body which requires a decision to be made - [i]someone else[/i] has to make the decision on behalf of the governmet body concerned; you don't get to.

I don't see why you think this is undemocratic. The principle at stake here is generally regarded as fundamental to the rule of law, without which, history strongly suggests, democracy does not long survive.

At Thursday, October 23, 2008 5:28:00 pm , Blogger Schütz said...

Don't see why this is undemocratic? Lets have an example, shall we?

What if we applied this rule to the State Government?

What if the issue was abortion?

What if I had been a lifelong campaigner against abortion, using every democratic means to overturn the current practice - including submissions and court cases - but unsuccessfully?

Now suppose that I finally decided to take the last step available to me as a citizen of this great nation: get myself elected to parliament.

Then suppose that I get elected by a landslide of popular appeal by many others who want the legality of abortion overturned. (Okay, we are "supposing" here, alright?)

THEN, when it comes to the vote in the house the law tells me that I can't vote on this issue because I have a "personal interest" in it.

You BET I have a personal interest. And if I have been elected to have a say on the issue, I bloody well have the right to have this say. AND the vote.

That's my point, Perry.

Of course, it might just be that I got myself elected to the local council because I want to build a big carpark outside my business, and previous submissions to the local council and VCAT have been unsuccessful in attaining this desire.

But this law is far to draconian by half - because it covers absolutely any kind of issue what so ever. It is cutting its own throat to spite its face.

At Thursday, October 23, 2008 7:55:00 pm , Anonymous Peregrinus said...

No, no, no. "Personal interest" doesn't refer to the fact that you are personally concerned about some issue of principle; all politicians are supposed to be concerne about matters of principle. It means that you will be affected by a decision of government, in a way that the generality of citizens will not be; you have a "personal interest" in the decision.

Suppose you apply for planning permnission to build on a bedroom to your house so that your aged and infirm grandmother can come and live with you.

And suppose your neighbour objects, because he thinks the extension will overshadow his garden, or block his view.

The matter comes before council for a decision. Your application, and your neighbour's objection, must both be considered.

Your neighbour, as it happens, is a councillor. Would you be happy for him to participate in the decision? Or, if the boot was on the other foot and you were the councillor, would you expect your neighbour to be happy with the prospect of you participating in the decision?

That's what this is directed at. It will certainly not prevent pro-life campaigners (or pro-choice campaigners) who are elected to parliament from voting on abortion legislation.

At Friday, October 24, 2008 7:44:00 am , Blogger Schütz said...

I KNOW that that is what it is directed at, Perry, but READ the bill. The reason the civil-libertarians are getting all excited about this is because the bill itself GOES MUCH FURTHER than simply building/car park plans. It calls "self-interest" anything that you might have made an official submission on. ANYTHING. Period.

So, to take a more sedate example than pro-life issues, which are unlikely to come up in local councils, suppose you have made a submission on getting an improvement to local parks and playgrounds to make them safer for children. Then, when you become a councillor precisely to get this job done, you find yourself excluded from voting on the issue because you have a "personal interest".

See the problem?

Or for instance, to take a real life example, if I were to become a local councillor, and there were to be a new application to put in a table-top dancing venue in our local shopping centre, and I wanted to vote against it, I would be excluded because I once made a submission to the local council to reject precisely this proposal (thankfully then the council saw sense).

See the point?

At Friday, October 24, 2008 12:04:00 pm , Anonymous Peregrinus said...

You’re overlooking some important words in the Bill. You only acquire an indirect interest in a matter if you exercise a right under the common law, an Act or regulation to make a submission in relation to the matter.

There’s no law, act or regulation which says that I have a right to write to my councillor urging safer playgrounds; I can do this because I have a pen, a sheet of paper, an envelope and 55 cents for a stamp, not because some statute says I can. (And, equally, there’s no law that says that my councillor need pay any attention at all to my letter, or even read it. He will read it, and take account of it – or at least pretend to – if he hopes to be re-elected. but that’s up to him.) So, if I have made a submission of that kind, this does not give me an “indirect interest” in the subject of playground safety and, if subsequently elected to the council, I can vote on any playground safety issues that come before the council.

What this measure will catch is procedures created by laws or regulations for the making of specific decisions. It’s common – indeed, justice normally requires – for administrative decision procedures to allow either persons who may be particularly affected by the decision, or the general public, to make submissions or objections, and in such cases the law will always require whoever is making the decision to consider those submission or objections. Your neighbour can lodge an objection to your planning application because some section in the planning legislation says he may, and – usually – requires him to be notified so that he has an opportunity to do so, sets a time limit within which he needs to do so, etc. So, if he does lodge an objection, he is doing so in the exercise of a right conferred by the Planning Act (or whatever it may be called) and, should he happen to be a councillor, he will be unable to vote on the matter.

The fact that you objected to a particular application for a table-top dancing license would prevent you (if a councillor) from voting on that application, but it would not prevent you from voting on other applications for table-top dancing licenses. “The matter” in relation to which you lodged an objection – the “matter” which give rise to your statutory right to object - was not dancing, or tables, or licenses, or table-top dancing licences in general; it was that particular application for a table-top dancing licence, and your objection would be required to be considered only in relation to that application. You may, in your letter of objection, have mentioned concerns which have implications for all table dancing, such as the hazard of falling off the table while executing a particularly vigorous polka and the cost to the public of treating the spinal injuries which will very probably result, but your objection nevertheless is only n objection in respect of the matter before council, which is the particular application, and not the broader merits and demerits of table-top dancing as such. If, on another occasion, a different application were to be made for a table-top dancing license and you did not make any objection to that application, you would not have “indirect interest” in it.

At Friday, October 24, 2008 12:38:00 pm , Blogger Schütz said...

A) that's a very fine distinction you're making between a submission under regulations and a submission not under regulations - I wonder if this fine distinction would be completely recognised in practice.

B) Even given what you say is correct, why should the fact that I have made a submission in regarding that particular table-top dancing venue remove my right to vote against it were I to be elected a councilor? I don't see that it follows that just because I made a submission I have a "self-interest" in seeing the venue application blocked. I have an "interest" in blocking table top dancing venues in general. Since this is a table top dancing venue, I opposed it with a submission. But as the basis of my concern was its effect on the community as a whole rather than any personal benefit, why should that prevent me, were I to be elected a councillor while the application was still being considered, from having the right to vote against the application being granted? Of course I have an "interest", but why should that interest be construed to be against the interest of the democracy which I serve?

At Friday, October 24, 2008 2:30:00 pm , Anonymous Peregrinus said...

AA) I'm not making the distinction. The Act is making it, quite explicitly.

Would it be recognised in practice? Well, even if you think the Act is ambiguous – and I don’t think, carefully read, that it is – when faced with two possible interpretations, one of the canons of interpretation that the courts use is that the interpretation which is consistent with the legislative policy and purpose, and which makes sense, is to be preferred over the inconsistent, nonsensical one. If the Act said what you fear it says, it would indeed be nonsense, and the effect of the Act would have nothing to do with enhancing the integrity of public administration, which is obviously its purpose, so precisely for that reason I cannot see a court accepting that interpretation of the Act.

B) The motivation for your objection is irrelevant; indeed, you may not even mention it in your objection. To continue with the table-dancing example, you might believe that table-dancing is degrading to public morality and should not be allowed anywhere, and this motivates you to object. However, if you write “table-dancing is degrading to public morality and should not be allowed anywhere” your objection will be unsuccessful. Why? Because the council is required to decide the application in accordance with the law laid down by Parliament which – let us assume for the purposes of the example – envisages that table-dancing will be permitted unless there are particular circumstances which make in inappropriate in a particular instance – unsuitability of premises, too near a primary school, destructive of amenity of residential area, applicant has a conviction for keeping a brothel, whatever.

In other words, if your objection is to succeed, it’s got to point to a consideration which the counsel can properly take into account. “Table-dancing should never be permitted” is not one of these; nor is “this business would provide competition to my nearby lap-dancing club”. So, if you are thoughtful or well-advised, your objection will focus on other, relevant (as in, legally relevant to the role of the council) criteria.

The result is that it’s not really possible to draw a distinction between submissions which aim to defend private concerns, versus those which aim to defend the public welfare. Those making the submission are not required to state their motivation, either comprehensively or at all.

The point here is to defend the integrity of the decision process. Any submission may be in defence of a private interest and, as a matter of fact, the great majority of submission made to local authorities in relation to the decisions that come before them are. It’s right in principle that where submissions are in defence of private interests, those making the submission should not also make the decision. I don’t think its feasible to separate out the “genuine public interest” submissions and give them an exemption from this rule, given that motivation is not stated and is usually not relevant to the decision the council has to make. Beside, who would make the determination that such-and-such a submission was or was not a “public interest” submission? Clearly, it could not be the councillors themselves.

It’s also worth pointing out that, in the example given, if your objection is to table-dancing in all circumstances, neither objecting to individual applications nor standing for council is going to help you achieve it. You need to be lobbying or running for Parliament. I’m not sure that we should be trying to amend the law to assist people in running misguided and misdirected campaigns, especially if this imperils the primary objective, which is to eliminate corruption in local government; far better to focus their attention where it needs to be focussed.

There is a risk that a combination of poor timing and bad luck could mean that a councillor, recently elected on a platform of advancing a particular view, is precluded from voting on a specific application even thought his vote would be motivated entirely by publicly-declared concern for the public good, without reference to any private or vested interest. But this can only happen exceptionally, where the period for submissions occurs so far before the election that the campaigner does not expect to be elected to council by the time the decision comes to be made, and yet he is elected to council by the time the decision comes to be made. To be honest, I don’t see this as a big problem, and certainly not as big a problem as the one the Bill aims to tackle, which is corruption in the administration of local government.


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