Discretionary or “Quasi-Judicial” Decision Making

We can describe “Quasi-Judicial” decision making as a decision-making process involving the exercise of a (statutory) discretionary power which may affect the rights and interests of an individual or corporation.

Governance Principles

Acting in a Judge like Manner

Decision makers must act in a “Judge-like manner” when performing quasi-judicial functions, show no bias (prejudgment), decide on the merits, based on the facts, and the law applying at the time, and have no conflict of interest.

Bias or Prejudgment

Bias arises when a decision is not based on the merits of a case but is ‘pre-judged’ (or it appears that way). 

The principle is that those who will determine a matter should not demonstrate  that they had already made up their mind prior to determining the matter. Decision makers should be able to reconsider their views in light of all the evidence and arguments presented…and be capable of being persuaded.

In Winky Pop Pty Ltd v Hobsons Bay City Council [2007] VSC 468 (Winky Pop) a local government Councillor:

• Lodged a submission with Council on a proposed planning scheme amendment relating to a strategic redevelopment area (change in zoning issue)
• Declared a conflict of interest when Council voted to send the submissions to a panel and
• Appeared before the panel and made oral submissions including to exclude Winky Pop land from the strategic redevelopment area.

The main issues in the Winky Pop appeal were:

• Whether Council was required to comply with the requirements of natural justice and
• Whether the Councillor had prejudged the issues for consideration in relation to the amendment, and for that reason the relevant Council decision failed to comply with the requirements of natural justice.

The Court found that:

• There was no actual conflict of interest
• The principles of natural justice apply to the decisions of the Council
• A fair minded and informed member of the public might entertain a reasonable apprehension that, by making the submission, the Councillor might not have brought an impartial and unprejudiced mind to the resolution of issues considered by Council
• The Councillor was affected by apparent bias (pre-judgement) in participating in and voting on the Council resolutions and
• The Councillor’s involvement was sufficient to invalidate Council’s decision.

Exercising the Discretionary Power

What is Involved?

To exercise a discretion, a decision maker cannot just arbitrarily decide. The decision maker:

• Must first determine what factors they should take into account
• Should weigh up of those factors after applying the facts of the matter
• Needs to balance the merits of a decision one way or the other after giving appropriate weight or importance to each factor and
• Must not allow any bias or pre-judgment to affect the formation of their decision.

How do you know what to take into account?

The decision maker must look to the enabling legislation.

• If the legislation sets out factors that must be taken into account exclusively then the decision maker can only take into account those specified factors
• If the legislation sets out factors that must be taken into account but does not make them exclusive, then the decision maker must still take those factors into account but can also take other non-specified factors into account
• If the legislation sets out factors that may be taken into account, then the decision maker can choose whether or not to take or pay any attention to those factors or whether to choose other factors to take into account
• If the legislation is silent, it does not mean the decision maker can make an arbitrary decision; they must still determine what factors to take into account.

Summary

Governance Principles

• Act in a Judge like manner
• No bias, no conflict
• Don’t pre-judge, be open to persuasion
• Decide on merits, based on facts and law at the time
• Avoid personal advocacy or submissions prior to decision making.

Exercising Discretion

• First, look to the Legislation to determine factors, “must only” or “must” or “may” or “silence"
• Subject to the above take into account all relevant factors
• Use common sense and avoid injustice and unnecessary expenditure of public funds.