What is a good decision? Do councils need to make them?

LG Leader December 2018

A good decision is one that can withstand scrutiny. It seems obvious then that councils should make decisions that can withstand scrutiny.

The issue of good decision making is always of significant importance for councils, but it is of particular importance given the recent election of new council members and the exercise of decision-making functions by new elected bodies.

Councils make many decisions whether it is by the elected body or by a council officer under delegated authority. In either situation it will be common that a third party may wish to understand the reasons for a decision, particularly if it is a decision that adversely affects them.

In many circumstances there is not any legal requirement for reasons to be given. However, it is becoming an increased expectation that councils do provide reasons particularly if a decision is subject to challenge, for example, by review under section 270 of the Local Government Act or, say, the Freedom of Information Act.  The South Australian Civil and Administrative Tribunal (SACAT), a statutory body that has jurisdiction to review some local government decisions provides reasons for making decisions:

• as a way for the community to understand tribunal decisions;
• promotes the quality and consistency of tribunal decisions;
• enhances the openness and accountability of public administration;
• is in the interests of open justice.

The State Ombudsman also has jurisdiction to review how councils arrive at decisions and there are various aspects of the Ombudsman Act that require the provision of reasons. It should then follow that the responsibility of any public authority is to be responsible and accountable for its decisions regardless of whether it is directed by legislation to include reasons.  So, why should council’s standard of decision making be any different? The simple answer is that it shouldn’t be. Nevertheless, the standard of decision making can be put to the ‘test’ by various review mechanisms, including the Supreme Court by way of judicial review.

For more information please contact Natasha Jones on  (08) 8113 7102 or at njones@kelledyjones.com.au.