A local councillor who votes to increase the size of one of his buildings and make windfall profits is under no obligation to tell the public that his vote might have been influenced by a conflict of interest. That's the literal, or grammatical, interpretation of the law on councillors' need to disclose their business dealings championed by developer-politician Salim Mehajer's QC, and the reason he should not be banned from politics, a court was told.
Auburn Councillor Mehajer was not in the NSW Supreme Court on Friday afternoon for an urgent appeal against a state government decision to suspend him from duties as a councillor for four months.
A tribunal had found Cr Mehajer had failed to declare he owned a property on Mary Street in Lidcombe when voting on a change to council planning codes that would have increased its value by an estimated $1 million and maximum height by one-third.
"It may have had financial consequence," Mr Mehajer's attorney, Michael Finnane, QC, conceded, of his client's vote.
But Mr Finnane argued that was not relevant, because NSW law on disclosing councillors' conflicts of interest only obliged them to speak up when council decisions changed the "permissible use" of their property.
Mr Mehajer's defence hangs upon the meaning of those words.
Mr Finnane argued for a "grammatical" reading: councillors must only disclose a conflict when voting on policies that change the very nature of their properties – from, say, a house to a hotel.
"It may be [an] unattractive [conclusion] but we believe it follows [from the legislation]," Mr Finnane said.
Mr Finnane argued that if legislators had intended to the law to have wider use they would have simply been more plainspoken and said "anyone who stood to profit from [a vote] had to reveal it".
Lawyers for the NSW government argued those words had an obvious intended meaning, one understood by the person on the street, as an obligation to disclose factors that might be perceived to influence a councillor's vote.
Justice Peter Garling said the case hinged on the proper degree of "abstraction" used in interpreting the law.
He declined a request from to lift Cr Mehajer's suspension while he deliberated on the case.
If Cr Mehajer's novel legal defence is upheld it may result in swift changes to the law.
But it might not do much good for the controversial councillor, who may have attended his last meeting.
Driven by suspicions over the recent sale of public land to Cr Mehajer by his council colleagues at an apparent $5 million discount, local government minister Paul Toole has asked the council to show cause why it should not be suspended.
If the Minister goes through with his threat all councillors will likely be sacked and an administrator will be appointed.
A decision on the suspension is expected next week.
Auburn council's next meeting is scheduled for February 17. A decision on the appeal is expected before then.
