The Ombudsman, the former Attorney-General, and the hypothetical ‘fair-minded person’
In his May 2022 report entitled Investigation of a referral by the Select Committee on the Conduct of the Hon Vickie Chapman MP, the South Australian Ombudsman examined certain conduct of the former Attorney-General (also being the former Minister for Planning and Local Government). The Ombudsman concluded that there was no wrongdoing.
The full report is available here.
In the course of his report, the Ombudsman analyses certain aspects of the hypothetical ‘fair-minded person’ who plays such an important role in South Australia’s public integrity and administrative law landscape.
Those familiar with the council member conflict of interest provisions of the Local Government Act 1999 (LG Act) will recognise that it is the perspective of an ‘impartial, fair-minded person’, and more particularly what that person ‘could reasonably’ perceive, which determines whether a council member has a ‘perceived conflict of interest’ in a matter. When the concept of ‘perceived conflict of interest’ is removed from the LG Act by the Statutes Amendment (Local Government Review) Act 2021, the impartial fair-minded observer will continue to be relevant – they will be tasked with determining whether a ‘general conflict of interest’ exists.
Further, in the common law concept of apprehended bias (being a concept in administrative law relevant to the validity of decisions), once again it is what might ‘reasonably’ be perceived by a ‘fair-minded’ observer which matters (not any actual person’s subjective views on a matter). Council members and officers alike (and, for that matter, decision-makers in the other tiers of government) must take care to avoid scenarios where this fair-minded observer might reasonably perceive that the decision-maker might not bring an open and impartial mind to a decision. This is so whether or not there is any form of conflict of interest which also needs to be dealt with, as it is a separate concept.
Although this ‘fair-minded person’ is not expressly mentioned in the South Australian Ministerial Code of Conduct, the Ombudsman has now determined that it is appropriate to apply the perspective of this hypothetical ‘fair- minded person’ (more particularly, a ‘reasonable and fair-minded person’) when assessing the existence of a ‘perceived conflict of interest’ under that Code. The Ombudsman quotes and relies upon the Independent Commissioner Against Corruption’s June 2021 report entitled Identify, Disclose and Manage: Conflicts of Interest in Public Administration to reach this conclusion.
After setting out this conclusion in his report, the Ombudsman then usefully elaborates on what level of knowledge one should ascribe to this hypothetical person. In particular, the person ‘possesses knowledge of the facts, interests and issues that they would reasonably be expected to know in the circumstances’. Importantly, this might not include everything the decision-maker knows.
The Ombudsman also observes that, when perceiving whether a conflict of interest exists, the fair-minded person ‘understands and appreciates the importance of the relevant [private] interest and the decision at hand’. Thus, it may be that the observer will apply a more rigorous standard of conduct in cases where the relevant interest, and/or the relevant decision which might affect that interest, is of a more significant nature.
There is a strong possibility that the Ombudsman will apply this same formulation of the ‘fair-minded person’ in any perceived conflict of interest or general conflict of interest matter which may arise under the LG Act and fall for his consideration in the future. This is so even though the Ombudsman’s analysis in this case was in part guided by various iterations of the Ministerial Code of Conduct, and was not directly concerned with the LG Act conflict of interest provisions. At least until the Ombudsman (or a Court) provides other more LG Act-specific guidance, we consider it would be prudent for council members and officers to take on board the Ombudsman’s observations in this case about how the hypothetical ‘fair-minded person’ approaches a matter.
Norman Waterhouse has significant expertise in matters of local government conduct and decision-making, including the legislative reforms which are presently being rolled out. For more information about the matters set out in this article, please contact Felice D’Agostino on (08) 8210 1202 or fdagostino@normans.com.au, Dale Mazzachi on (08) 8210 1221 or dmazzachi@normans.com.au, or Chris Alexandrides on (08) 8210 1299 or calexandrides@normans.com.au.
