better decisions project framework report-management project reference

7/28/2019 Better Decisions Project Framework Report-Management project reference

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Better Decisions Project:

A framework for effective administrative

decision making systems

November 2005

A joint project of:


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Better Decisions Project:A framework for effective administrat ive

decision making systemsPage: i i


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decision making systemsPage: iii

Executive Summary

The Better Decisions Project

The Better Decisions Project was established in April 2003 by the then Department of

Tourism, Racing and Fair Trading (now the Department of Tourism, Fair Trading andWine Industry Development (DTFTWID)), in partnership with the Department of thePremier and Cabinet, and the Office of the Queensland Ombudsman (theOmbudsmans Office).

Officers from the Department of J ustice and Attorney General and the QueenslandBuilding Services Authority (the QBSA) also contributed their experience, expertiseand guidance to the project as members of a consultative committee.

The Better Decisions Project largely stems from an earlier review of tribunals anddispute resolution bodies within the Tourism, Racing and Fair Trading portfolio. Themajority of recommendations arising from this review report resulted in the creation ofQueenslands Commercial and Consumer Tribunal, which has jurisdiction to considera wide range of matters, including certain decisions of the Chief Executive ofDTFTWID and certain decisions of the QBSA.

A secondary recommendation of this review was that a further review ofadministrative decision making procedures, internal review mechanisms, complainthandling systems and training/skills analysis of primary decision makers beundertaken.

The secondary recommendation was the basis of the Better Decisions Project. Oneof the main aims of the project is to enhance administrative decision making withinDTFTWID at a systemic level, through the development of a Framework thatincorporates the key features of effective administrative decision making systems.

This report presents the framework developed in the project (referred to as theBetter Decisions Framework).

Purpose of the Better Decisions Framework

The report examines administrative decision making at a systems level, focusingparticularly on decision making systems with regulatory functions such as registrationand accreditation programs, occupational and business licensing, and enforcementof legislation.

The Better Decisions Framework is primarily intended to be a guide for officersinvolved in the design and establishment of new administrative decision making

systems, and officers participating in substantial reviews of existing decision makingsystems.

Of course, the extent to which issues raised in the Framework apply to individualadministrative decision making systems will depend on the nature, purpose andcharacteristics of the particular decisions and decision making processes. For thisreason, the Framework should be used as a general reference only. It is notintended to be an exhaustive guide to the many diverse matters that affect both thedevelopment and ongoing operation of administrative decision making systems.


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decision making systemsPage: iv

Structure of this report

This report is essentially in two main parts. Part 1 (Chapters 1 to 3) outlines generalinformation on administrative decision making, and provides a brief summary of thebackground and development of the Better Decisions Framework.

Part 2 (Chapters 4 to 8) of the report sets out the five main components of the BetterDecisions Framework, and explains how they contribute to the effectiveness ofadministrative decision making systems. The five key components of the Frameworkare:

Legal Considerations;

Corporate Communications;

Management Practices;

Review and Appeal Structures; and

Complaint Handling.

There are also a number of references and resources included as appendices to this

report. For example Appendix 1 presents the Better Decisions Framework in asummarised checklist form, accompanied by a number of self-assessment questions.This checklist is intended to be a quick reference for people considering or applyingthe Better Decisions Framework.

Like many organisations, administrative decision making agencies are called upon toupdate and improve their services on an on-going basis. Throughout the Framework,a number of improvement strategies are highlighted as important ways of continuingto enhance administrative decision making systems.


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Table of contents

BUILDING THE BETTER DECISIONS FRAMEWORK

CHAPTER 1: ADMINISTRATIVE DECISIONS .....................................................................21.1 What are administrative decisions? ..................................................................21.2 Why is administrative decision making important?...........................................31.3 What are the benefits of a good administrative decision making? ...................3CHAPTER 2: DECISION MAKING SYSTEMS ......................................................................42.1 What is an administrative decision making system? ........................................42.2 Why examine administrative decision making from a systems perspective?...4CHAPTER 3: MODELS FOR DECISION MAKING SYSTEMS ..................................................63.1 Research ..........................................................................................................63.2 The decision making environment....................................................................63.3 Defining a framework........................................................................................9CHAPTER 4: LEGAL CONSIDERATIONS ........................................................................11

4.1 Law and the Better Decisions Framework......................................................114.2 Administrative law - impact on decision making systems..............................114.3 Other aspects of judicial review......................................................................194.4 Merits review...................................................................................................204.5 Legal considerations for the development of policy and legislation

underpinning administrative decision making systems ..................................23CHAPTER 5: CORPORATE COMMUNICATIONS ..............................................................275.1 Corporate Communications and the Better Decisions Framework ................275.2 Service Charters.............................................................................................275.3 General information about an agencys business and

decision making processes.............................................................................295.4 Communicating with clients through the decision making process ................30

CHAPTER 6: MANAGEMENT PRACTICES ......................................................................316.1 Management practices and the Better Decisions Framework........................316.2 Building and retaining knowledge about administrative decision making.......316.3 Delegations.....................................................................................................34CHAPTER 7: REVIEW AND APPEAL STRUCTURES ..........................................................377.1 Review and Appeal Structures and the Better Decisions Framework............377.2 Review rights under the Judicial Review Act 1991

and the Ombudsman Act 2001.......................................................................387.3 Legislated review and appeal rights for administrative decision

making systems..............................................................................................427.4 What decisions should be subject to merits review?......................................427.5 Forms of review..............................................................................................43

CHAPTER 8: COMPLAINTS MANAGEMENT ....................................................................458.1 Complaints Management and the Better Decisions Framework....................458.2 Characteristics of effective complaints management systems.......................47

APPENDICES............................................................................................................48


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Building the Better Decisions Framework


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Chapter 1: Administrative Decisions

1.1 What are administ rative decisions?

1. Government make laws to give effect to policies intended to benefit thecommunities they have been elected to govern. For example, governmentlegislation may provide for services and benefits for the community, prohibitsome conduct in the interest of public order and safety and regulate businessactivity to a degree considered appropriate to protect the wider public interest.

2. A major role of government agencies and officials is to administer governmentlegislation to achieve the policy purposes for which the legislation was enacted.Government legislation authorises Ministers and officials to make decisions thatcan affect citizens and corporations in many aspects of their lives and businessactivities.

3. Decisions made by the Governor in Council, Ministers or officials in the courseof administering legislation are administrative decisions. Also, someadministrative decisions are made, not under legislative power, but underinherent powers of the executive government, for example the power to makecontracts to procure goods or services.

4. Administrative decisions are often contrasted with:

J udicial decisions decisions made by Courts exercising judicial power; and

Decisions of a legislative character decisions which involve the making ofstatutory rules (Acts of Parliament and subordinate legislation), these rulesapply generally to all persons affected by their terms within the jurisdiction of

the particular government.

5. Generally, when a statutory rule or decision making power is applied by aMinister or official to the circumstances of a particular individual or corporation,an administrative decision is made.

6. Administrative decisions that impact on the rights or interests of citizens andcorporations, particularly those made under laws for the regulation of businessactivity, are the focus of this project.

7. Many Acts authorise Ministers or officials to make administrative decisionsrelating to a wide range of issues including occupational, business and liquor

licensing, registration and accreditation programs, as well as the investigationand enforcement of legislation.

8. Often Acts authorising administrative decisions also allow the relevant Ministeror Director-General to delegate their decision making powers to other publicsector officers. These Acts may also regulate the administrative decisionmaking process, and provide people affected by an administrative decision withrights to appeal, or seek review of, the relevant administrative decisions.


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9. The majority of government decisions made under legislation administered bythe Department of Tourism, Fair Trading and Wine Industry Development(DTFTWID) can be described as administrative decisions.

1.2 Why is administrative decision making important?

10. Government agencies make many thousands of administrative decisions eachyear, addressing a wide range of diverse matters and issues. Administrativedecision making is very important for a number of reasons, including thefollowing:

11. Firstly, many administrative decisions have serious, ongoing implications formembers of the community. For example, a refusal to renew a personsbusiness related license (such as a licence to operate as a real estate agent ora motor dealer, or a licence allowing the sale of liquor) can have seriousimpacts on the persons financial and business interests. Similarly, decisionsregarding the registration and accreditation of residential services such as

boarding houses and supported aged accommodation can have seriousimplications for the health, safety and well-being of some of the morevulnerable members of the community. Due to the very real impacts of thesetypes of decisions on peoples lives, administrative decision making is a seriousissue for public sector agencies.

12. Secondly, because of the very direct effect many administrative decisions haveon the community, the performance of a government agency is often judged onthe quality of its administrative decisions. By ensuring that their administrativedecisions are lawful, reasonable and fair, agencies can promote a positiveperception of their services and performance within the community.

1.3 What are the benefits of a good administ rative decision making?

13. There are many clear benefits of good administrative decision making, both forthe community and decision making agencies themselves. For example, goodadministrative decision making practices:

increase the likelihood of agencies making lawful, reasonable and fairdecisions about important matters affecting the community;

promote good customer relations, and a positive community perception ofthe role and performance of the agency;

allow the agency to identify and implement strategies to improve servicesoffered by the agency; and

contribute to better corporate governance, including the effective use ofresources, as well as accountability and transparency in governmentoperations.


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Chapter 2: Decision making systems

2.1 What is an administrative decision making system?

14. In summary, it is the procedures and arrangements that an agency orgovernment official has in place to capture and evaluate all material relevant tothe proper exercise of a decision making power. It includes documentation ofdecisions and reasons for decisions and any quality control procedures,including any process for obtaining and evaluating feedback from affectedparties or independent reviewers (eg Courts, tribunals, the Ombudsman), forthe purpose of system improvements.

15. Administrative decision making systems operate within a complex environment,with many external factors influencing and impacting on a systems processesand performance. These factors may be social, political, legal, physical andeconomic and may also include other systems.

2.2 Why examine administ rative decision making from a systemsperspective?

16. The Better Decisions Framework does not focus on the process officers shouldfollow to make sound administrative decisions, but on the systems whichshould be put in place to facilitate good decision making. The Framework doesthis by identifying key features of effective administrative decision makingsystems, and by highlighting how features of the decision making environmentinfluence the decision maker.

17. By adopting this broad based approach, it is hoped that the Better DecisionsFramework will assist in explaining the elements of good administrativedecision making and be a useful reference tool for officers involved in thedesign and establishment of new administrative decision making systems andofficers reviewing and enhancing existing decision making systems.


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Chapter 3: Models for decision makingsystems

18. As mentioned previously, one of the main goals of the Better Decisions Projectis to develop a framework comprising the key features of effectiveadministrative decision making systems. This chapter is a brief summary of thedevelopment of the Better Decisions Framework. Part 2 of the report presentsthe Framework in detail.

3.1 Research

19. Part way through the research conducted for the Better Decisions Project, itbecame apparent that while there are significant resources available ondecision making theory and administrative law principles, there was no

particular model identifying the elements of effective administrative decisionmaking systems performing regulatory functions, such as those performed byDTFTWID.

20. As a result, the direction of the Better Decisions Project was shifted to theconstruction of a model from an analysis of a number of different frameworksand quality models.

21. The research conducted for the Better Decisions Project has not beenreproduced in detail in this report. However, some of the material examined isreferred to in Appendix 2 which provides a brief summary of the key mattersinfluencing the development of administrative law and administrative review inQueensland over the last 30 years.

3.2 The decision making environment

22. Some of the main environmental factors influencing administrative decisionmaking systems are illustrated in the following diagram:

THE ADMINISTRATIVE DECISION MAKINGHE ADMINISTRATIVE DECISION MAKINGENVIRONMENTNVIRONMENT

Inter-related Framew orks

Continuous Improvement

Cmmuty

CpaeC

ty

Aminsav

Dso

Culture &Values

Principles

Governance Evaluation

Communication

People

Policy Performance


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23. Identifying and recognising the influences and impacts of environmental factorsis the first step in building the Better Decisions Framework. The next tableprovides a brief description of these influences.

Key Features of the Administrative Decision Making Environment

Key Features DescriptionCommunity Community refers both to local communities and to

organisations within those communities, as well as to society ingeneral. Community includes public opinion and values, ofteninfluenced by diversity, economics and demographics.

Culture and Values Values shape the culture permeating the operation of thedecision making agency. The culture of an organisation is thephilosophy or ethos underpinning every aspect of its operation.Culture and values together support and are reflective of anorganisations style of governance, including the tone ofstrategic planning employed by an organisation in working

towards its objectives.

Principles Principles relate to the codes of ethics and conductunderpinning the governance framework. Principles maintainthe integrity of a decision making system.

Policy Substantive government policies outline what the governmentintends to do through stated plans of action. Substantivepolicy is a statement of intent for dealing with an issuerequiring, or likely to require, the approval of the Parliament,the Cabinet and the Premier. Alternatively, procedural policiesconsider how something will be done and by whom, oftenwithin government agencies. They concern internal

operations, often in the form of departmental manuals,operating standards and technical operations.

Governance Governance or corporate governance refers to the strategy,planning and performance management and the basis forinternal and external accountabilities and processes within theorganisation. Governance style is reflective of the valueswhich shape the culture of an organisation.

Inter-related Frameworks Inter-related frameworks are those that influence the decisionmaking system, although they are external to it (for example,the Managing for Outcomes Framework).

People All systems and processes rely on their inter-relationship withpeople. People can include parties, staff, customers, theexecutive, other key stakeholders, interested persons andcommunity groups. The way in which people interact has aprofound effect on any system.


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Key Features Description

Communication Communication refers to information available to staff toenable them to perform their duties in accordance withgovernance strategies and values. This includes informationprovided by training and feedback. Communication also refersto accessibility of information to the public, including customers

and other stakeholders and the feedback provided by thesegroups.

Performance Performance of an organisation is assessed in line withorganisational goals, objectives, principles and values,strategic plans, key performance indicators and governanceobjectives. Performance monitoring and review may involveinternal and external systems and processes.

Evaluation Evaluation refers to the capability of an organisation to monitorand review its systems effectively and to develop best practicein relation to:

the operation of those systems; and

the application of feedback derived from those systemsto enhance performance.

Corporate Capacity Corporate capacity is about the capacity of the organisation toprovide a quality product and/or service based on its corporatecapability. This includes effective workforce planning, andtechnology, resources and knowledge management.

Continuous Improvement Continuous improvement is reliant on mechanisms being inplace to ensure that corporate values, culture, principles, policyand procedures are constantly evaluated and aligned withchanging corporate and societal values and views. This

includes encouraging and utilising feedback from staff,customers and other stakeholders to improve service delivery.


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3.3 Defining a framework

24. After examining these influences, five key subject areas were identified as abasis for the Better Decisions Framework. These subject areas arerepresented in the following diagram.

ADMINISTRATIVE DECISION MAKINGDMINISTRATIVE DECISION MAKINGFRAMEWORKRAMEWORK

Continuous Improvement

Legal Framework

Cpae

Cmmuco

Rewaa

suue

Ma

mePac

DseaCmpans

Ma

me

25. Of course, there are many other issues influencing the capacity of anorganisation to achieve its goals, and to provide an effective service to itsclients and stakeholders. However, it was considered that these five areaswere particularly important factors influencing the effectiveness of anadministrative decision making system operating in a regulatory environment.

26. The following chapters examine the ways in which legal considerations,corporate communications, management practices, review and appealstructures, and complaints handling, all contribute to effective administrativedecision making systems. Various continuous improvement strategies areidentified throughout the Framework as ways of ensuring that administrativedecision making systems grow and develop in light of contemporary trends,and changes in the environment within which the system operates.


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The Better Decisions Framework


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Chapter 4: Legal Considerations

4.1 Law and the Better Decis ions Framework

27. Law impacts on administrative decision making systems in many differentways. The effectiveness of a decision making system, and the quality of itsadministrative decisions, can depend on a proper consideration andimplementation of relevant legal principles.

28. This part of the Better Decisions Framework is a general guide to some of theways that law influences effective administrative decision making systems. Theframework examines the influence of law in the design, development, and on-going operation of decision making systems.

29. The application of laws regulating administrative decision making can betechnical and complex. Agencies should obtain professional legal advice andassistance in relation to any specific concerns about how the law impacts onadministrative decision making.

4.2 Administrative law - impact on decision making systems

30. Administrative law follows from the principle that government officials with legalpower over other citizens must stay within the bounds of that power and use itonly as the Parliament intended.

31. Many administrative law principles regulate the ongoing operation ofadministrative decision making systems. For example, laws concerning natural

justice, privacy and confidentiality, public record keeping and the conduct ofpublic officers regularly impact on the day-to-day operation of decision makers.

32. The effectiveness of an administrative decision making system, and the validityof its decisions, can depend on proper compliance with administrative lawprinciples.

33. The Better Decisions Framework broadly interprets the concept ofadministrative law to include any legal principles regulating administrativedecision making practice, excluding any specialised legislation underpinning anagencys administrative decision making functions. The following are some ofthe main administrative law concepts that regularly impact on administrativedecision makers.

34. In designing systems for better decision making, it is often desirable to developwritten guidelines (see paragraphs 159 165, pp34-35) to assist decisionmakers responsible for exercising specific statutory powers. This is especiallyimportant where there is a significant volume of decisions to be made under astatutory power, and/or the exercise of a power may significantly affect therights or interests of an individual or a corporation.


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35. The guidelines should include a clear statement of the government policyobjectives that the statute and the particular statutory power aim to achieve.

They should also explain the requirements for a valid exercise of the decisionmaking power, not only those requirements expressed in the legislation, butthose implied from careful interpretation of the statute as a whole and thoseimposed by general administrative law principles.

36. For example, if no specific procedures for exercising a decision making powerare set out in the legislation, the guidelines could suggest procedures thatshould normally be followed to obtain and assess all information relevant to thedecision making process.

37. The guidelines may also spell out:

the circumstances in which natural justice may require that a person begiven an effective opportunity to present a case to the decision maker beforea decision is made adverse to that persons interests;

what considerations are relevant to the exercise of the decision makingpower (and give examples of considerations that are not relevant);

what facts need to be established to support a favourable exercise of thedecision making power; and

what kinds of evidence should be sought to establish those facts.

38. For those involved in preparing guidelines of this kind, it will often be valuableto obtain legal advice to ensure that the guidelines are consistent with therelevant legislation and also comply with general requirements of administrativelaw.

39. Sections 20, 23 and 24 of the Judicial Review Act 1991 set out the grounds ofreview on which the Supreme Court may, at the request of a person aggrieved,set aside a decision made under an Act (or under some non-statutory schemes

or programs) for failure to comply with legal requirements for the making of thedecision. Those grounds of review can be used as a checklist of issues to beaddressed, or pitfalls to be avoided, when drawing up guidelines to assistdecision-makers. The following is a brief analysis of some of the main groundsof review:

Natural Justice

40. When making a decision that could adversely affect a persons rights orinterests, Australian law requires that a decision-maker must:

(i) be, and be seen to be, impartial (the rule against bias); and(ii) follow fair procedures, in particular, procedures that give the affected

person(s) a reasonable opportunity to present their case (the hearingrule).


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(i) The Rule against Bias

41. Bias is a lack of impartiality for any reason. Australian Courts can overturn adecision for actual bias on the part of the decision maker; or for a reasonableapprehension of bias, even where no actual bias can be demonstrated.

42. Actual bias could occur if, for example, the decision-maker:

has a direct or indirect (for example, through a relative) financial or otherinterest in the outcome of a decision, or

has a prejudiced attitude toward a person who would be affected by thedecision (perhaps as a result of conflict in prior dealings with that person).

43. The test for apprehended bias is whether a fair-minded observer, aware of allthe relevant facts, might reasonably suspect that the decision maker will notresolve the issue with a fair and unprejudiced mind, for example, if the decisionmaker had shown favouritism (or hostility) to one side of the case or had

otherwise engaged in conduct that might lead a fair-minded observer to believethat the decision maker had prejudged the issue to be decided.

44. This does not mean that a decision maker cannot indicate a provisional view ona matter, especially where that helps participants to focus on the critical issues.However, in indicating a provisional view, the decision maker should make itclear that he or she retains an open mind on the issues and will carefullyconsider any relevant information and arguments put forward by the affectedparticipants.

45. If actual bias, or a reasonable apprehension of bias, exists in a particularinstance, a different decision maker should be allocated to that case.

(ii) The Hearing Rule

46. The only exception to the hearing rule is where the statute containing thedecision making power makes it clear, expressly or by implication, thatParliament intended to exclude the principles of natural justice from the makingof decisions under a particular statutory power.

47. What is a fair procedure has to be worked out on a case by case basis havingregard to:

the nature of the particular statutory decision making power;

the legal considerations and evidence that will be relevant to its exercise;and

the significance for the relevant person of the rights or interests that may beaffected by an adverse decision.

48. Practical considerations affecting the exercise of the power may also berelevant, for example, urgent circumstances (or other considerations relating totimeliness of decision making), cost and administrative efficiency.


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49. Guidelines (developed with the assistance of legal advice) about fairprocedures for the exercise of a particular decision making power can be avaluable aid for decision makers.

50. The essence of the hearing rule of natural justice is that a person whose rightsor interests may be adversely affected by the exercise of a statutory decision

making power, should be given a fair opportunity to present a case to thedecision maker for a favourable exercise of the decision making power. Thisneed not involve any kind of formal court like process. The opportunity topresent a case in writing is usually sufficient, though a personal hearing may beappropriate where a persons honesty or credibility on a particular issue needsto be assessed.

51. The hearing rule requires that the person who may be affected by a decisionmust be given:

reasonable notice that a decision is to be made,

sufficient details of the nature and consequences of the decision, and

the criteria that govern the making of the decision.

52. In particular, the decision maker should inform the person affected of the criticalissues or factors on which the decision is likely to turn, so that the person has afair opportunity to address them. In many instances, presenting an affectedperson with a summary of all relevant information will be sufficient to enable ameaningful submission to be made in response to the information.

53. If the decision maker proposes to rely on adverse information obtained from athird party or through the decision makers own inquiries, sufficient details ofthat adverse information should be given to allow the person affected a fairopportunity to answer it. The person must be allowed a reasonable time torespond having regard to such factors as the urgency of the decision, the

seriousness of the consequences of the decision, and the volume andcomplexity of the information presented to the affected person for response.

54. Another aspect of allowing a reasonable opportunity to present a case is thatany special communication needs of affected persons must be taken intoaccount. Appropriate arrangements should be made for people with limitedliteracy or a disability or from a non-English speaking background to be able toparticipate meaningfully in the decision making process.

55. If the person affected raises a new issue that is relevant to the exercise of thedecision making power, there may be a duty to investigate the issue and makefindings in respect of it.

56. The Courts have also stated that it is a requirement of natural justice that adecision must be based on probative evidence, that is, on material whichtends logically to show the existence or non-existence of facts relevant to theissues to be determined. Guidelines for a particular decision making powershould cover the material facts that need to be established, and the inquiries, orsources of information, which should be pursued to obtain relevant informationto support findings as to material facts.


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Failure to comply with mandatory procedures

57. Where the statute conferring a decision making power specifies procedureswith which a decision maker must comply (whether before or after the makingof the decision), a Court may set aside the decision for failure to comply withthe procedures. It is advisable for guidelines to contain a checklist of any

mandatory procedural requirements.

No authorisation/jurisdiction to make the decision

58. Statutory decision making powers are usually conferred on a specified official,for example, the Governor-in-Council, a Minister, a chief executive, or astatutory office holder. That official is often empowered by the statute todelegate the decision making power. In those circumstances, the decisionmaking power must be personally exercised by the official specified by thestatute or by an authorised delegate of that official. A decision made by anotherofficial who lacks proper authorisation will be invalid.

59. A good decision making system must therefore ensure that the authoriseddecision maker personally considers all relevant material, even if it is in theform of a brief prepared by junior officers. The system must also ensure thatwritten instruments of delegation are correctly drafted in accordance with theterms of the relevant statute and periodically reviewed to ensure that all officersexercising decision-making powers have current, valid delegations. (Delegationof statutory powers is addressed in greater detail at paragraphs 170-188, pp36-38, Chapter 6.)

60. A second aspect of the no authorisation principle is that an official cannotmake a decision that is not authorised having regard to the true scope of the

decision making power conferred by Parliament. This principle will apply toinvalidate a decision where, for example:

through a misunderstanding of the relevant statute, an official o fails to address the issue (or one of the critical issues) which the

statute requires an authorised decision-maker to address; oro purports to decide an issue which is outside the scope of the decision

making power conferred by the relevant statute; oro makes an order or determination of a kind not authorised by the

relevant statute; or

an official makes a mistake as to the existence or non-existence of a fact incircumstances where the existence or non-existence of that fact is aprecondition to the exercise of a statutory decision-making power (often

referred to as jurisdictional facts).

61. Guidelines prepared with the assistance of lawyers can anticipate and giveguidance on any difficult issues of statutory interpretation that might otherwisecause an authorised decision maker to identify an incorrect issue or apply anincorrect test for the exercise of a particular decision-making power. Guidelinescan also highlight any jurisdictional facts on which the exercise of a particulardecision making power depends and provide guidance on the inquiries, orsources of information, that should be pursued to obtain relevant information tosupport findings about the jurisdictional facts.


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Error of law

62. The Judicial Review Act 1991 also provides that a decision made within anofficials jurisdiction and authority may be set aside if the decision involved anerror of law. The most common kinds of error in this regard involve themisinterpretation of the relevant statute, including the misapplication of a

relevant statutory phrase to material facts as found by the authorised decisionmaker.

63. Again, it is advisable to obtain advice from lawyers on any questionableaspects of statutory interpretation and incorporate that advice into guidelinesfor authorised decision-makers.

Fraud

64. A court can set aside a decision if it was induced or affected by fraud. In thecontext of statutory decision making, this would most likely involve the

falsification of evidence and/or the suppression of relevant evidence.

65. Guidelines for particular statutory decision making powers may need to coversteps for testing/cross-checking the truth of evidence, and whether all relevantevidence has been obtained.

No evidence or other material to justify the decision

66. In applying most statutory decision making powers, the decision maker must besatisfied as to whether certain material facts are or are not established as abasis for making ultimate findings as to how the decision making power should

be exercised.

67. Evidence is used here in the broad sense of relevant information, unfetteredby the rules of evidence as applied in superior courts.

68. A Court exercising judicial review may overturn a decision if there was noevidence or other material before the decision maker that was logically capableof supporting the finding made by the decision maker on an issue of fact thatwas material to the ultimate decision (in the sense that the ultimate decisionmight, or would, have been different, if a different finding of fact had beenmade).

69. As suggested above, it is appropriate that guidelines cover issues relating tothe sufficiency of evidence to support findings on questions of fact that arematerial to the exercise of a particular statutory decision making power,including assistance with how to resolve disputed questions of fact.

70. It is particularly important that decision makers record how they assessed theavailable evidence and their line of reasoning to support findings on materialquestions of fact (particularly disputed questions of fact), with reference back tothe critical parts of the evidence or other material before them. This will beneeded if a statement of reasons is sought by an aggrieved person or thedecision becomes subject to judicial, tribunal or Ombudsman review.


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Improper exercise of the decision-making power

71. A decision otherwise made within the scope of the decision makers authority/jurisdiction may be overturned on judicial review on the basis that the decisionmaking power has been improperly exercised if any of the following grounds ofreview are established.

(a) taking an irrelevant consideration into account in the exercise of a power;(b) failing to take a relevant consideration into account in the exercise of a

power; or(c) exercising a power for a purpose other than a purpose for which the power

was conferred.

72. If a statute specifies considerations that must be taken into account whenexercising a decision making power, then a failure by a decision maker to takeinto account one or more of those considerations will be a ground of

justification for a Court to set aside the decision.

73. When a statute does not specify considerations to be taken into account (orspecifies some but not all considerations), a Court may, by a process ofstatutory interpretation, draw implications from the subject matter, scope andpurpose of the statute that:

certain considerations were relevant to the exercise of the decision makingpower, and

the decision maker was bound to take them into account (even though thatwas not expressly stated in the legislation).

74. Again, a failure to take those considerations into account may justify settingaside the decision.

75. There may also be considerations that, although relevant to the decisionmaking power, are not required to be taken into account by the decision maker,that is he or she can choose to do so or not. The Court will not interfere underthis ground of review if the decision maker chose not to take into account arelevant consideration that, as a matter of statutory construction, he or she wasnot bound to take into account.

76. By a similar process of statutory interpretation, a Court may decide that aconsideration taken into account by a decision maker was irrelevant to theexercise of the decision making power and should not have been taken intoaccount. If that error was sufficiently material, it may warrant setting aside thedecision.

77. Similarly, a decision making power cannot be exercised for a purpose ulterioror extraneous to the purpose(s) for which Parliament conferred the decisionmaking power. For example, if a council had a statutory power to regulate thekind of buildings to be erected on a development site, that power could not beused for the purpose of stopping any construction on the site. If the purpose ofa statute is not clearly stated in it, a Court will, through a process of statutoryinterpretation, draw implications from the subject matter, language and scopeof the legislation as to the permitted purposes for which the power may beexercised.


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78. Guidelines formulated with the benefit of legal advice can give guidance todecision makers on statutory interpretation issues of this kind by:

identifying all considerations relevant to the exercise of specific statutorypowers and specifying those which a decision maker is bound to take intoaccount;

giving examples of irrelevant considerations that should not be taken intoaccount;

identifying permissible purposes for which a statutory decision makingpower may be exercised; and

giving examples of purposes for which the statutory decision making powermay not be exercised.

Exercise of a discretionary power in bad faith

79. This ground is rarely relied on in Court decisions because an exercise of apower in bad faith would usually be caught by other grounds of review.

Exercising a power in a way that was calculated to benefit the decision maker,or a relative or friend of the decision maker, would be an example of bad faithand also infringe the rule against bias. A Court has suggested that deciding amatter by tossing a coin or allowing every third application would also beexamples of bad faith.

An exercise of a personal discretionary power at the direct ion or behestof another person

80. Where a statute vests an official with a personal discretion to make a decision,that official (or an authorised delegate) must not:

exercise the power under duress or undue influence, or defer to the views of another as to the decision that should be made, or

allow the decision to be dictated by another person.

81. However, the official is entitled to have regard to government policy and isentitled to give decisive weight to government policy in exercising the personaldiscretion, provided that the decision is genuinely that of the official. An officialis also entitled to consult the relevant Minister or chief executive about thedecision to be reached in a particular exercise of power, again, provided thatthe final decision is genuinely that of the official.

An exercise of a discretionary power in accordance with a rule or policywithout regard to the merits of a particular case

82. An agency may adopt a general rule or policy as to how a discretionarydecision making power is to be applied by authorised decision makers inordinary cases, provided the rule or policy is fair and legally valid having regardto the terms of the governing legislation.


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83. However, the rule or policy must not be applied inflexibly, without evaluating thefacts and merits of a particular case (especially a case that is out of theordinary.)

An exercise of a power that is so unreasonable that no reasonableperson could so exercise the power

84. Courts have shown they are prepared to overturn, on this ground,administrative decisions otherwise made within the scope of the decisionmakers powers where, for example, the Court considered that:

the decision was devoid of plausible justification;

the decision maker gave excessive weight, or inadequate weight, toparticular relevant considerations;

the decision was demonstrably and unjustifiably inconsistent with otherdecisions;

the decision involved discrimination without a rational distinction;

the decision maker did not attempt to obtain relevant information when it

was obvious that material centrally relevant to the decision to be made wasreadily available, or where the material available to the decision makercontained some obvious omission or obscurity that needed to be resolvedbefore a decision was made.

An exercise of power in such a way that the resul t of the exercise of thepower is uncertain

85. This ground of review would be made out if the terms in which a decisionmaker framed an operative decision or order were so unclear or ambiguous,that a reasonable person could not be certain as to their meaning or effect.

Any other exercise of power in a way that is an abuse of the power

86. This ground is intended to catch any abuse of power not covered by thegrounds above. It has been applied to invalidate a decision on the basis ofinconsistency in the application of administrative guidelines between like cases.

4.3 Other aspects of judicial review

87. Section 21 of the Judicial Review Act 1991 also allows an aggrieved person toseek intervention by the Supreme Court before a decision is made if a relevantground of review can be demonstrated in relation to conduct engaged in by

another preparatory to the making of a decision.

88. Section 22 of the Act allows an aggrieved person to seek intervention by theSupreme Court to compel an official who has a duty to make a decision, buthas failed to do so within a reasonable time or within a time frame stipulated bystatute to make the relevant decision.


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4.4 Merits review

89. While judicial review is mainly concerned with the processes by which adecision was made and ensuring that decision making power is exercisedwithin the limits of the governing statute, review of decisions by a merits reviewtribunal or by the Ombudsman is far wider in scope. The Ombudsman or a

merits review tribunal can look at all aspects of a decision under review andcould, for example, form a view that the relevant evidence should have beenassessed differently to arrive at different findings on material questions of factand different conclusions on crucial issues.

90. This kind of independent monitoring can provide valuable feedback on thequality of an agencys decision making systems by assessing not just whetherthe decision making system is complying with legal requirements, but whether itis producing correct, fair and just decisions.

Record keeping

91. Comprehensive and timely record keeping is central to good administrativepractice.

92. The importance of effective record keeping in public sector agencies has beenhighlighted by recent investigations by the Queensland Ombudsman and theQueensland Crime and Misconduct Commission (CMC) regarding childprotection issues.i Both the Ombudsman and the CMC highlighted poor recordkeeping practices as a systemic issue within a particular agency, with the CMCgoing as far as expressing a view that (t)here is no doubt that inadequaterecord-keeping by departmental officers and the department as a whole is oneof the reasons the child protection system is currently failing to properly protectQueenslands children.ii

93. There are well established benefits of government agencies maintainingcomprehensive records of both their decisions and the processes undertaken inmaking those decisions. Similarly, there are serious risks for agencies that failto document their decisions and decision making processes properly. Some ofthe benefits of proper record keeping are as follows:

Effective record keeping leads to improved decision making by providingdecision makers with comprehensive, detailed information on which tobase their decisions.

A proper record of the steps taken to arrive at a particular decision assiststhe decision maker to prepare a comprehensive statement of reasons.

Proper records enable the agency to establish how particular decisions

were made, in the event that the agency needs to revisit a matter for anyreason in the future.

Proper records assist review bodies to understand why and how adecision was made.

Proper record keepingenhances transparency in government by enablingagencies to respond meaningfully to requests under the Freedom ofInformation Act 1992.

Accountability in government is also enhanced by agencies maintainingproper records of decisions and decision making processes.


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94. As well as being a vital part of good administrative practice, governmentagencies also have a legal obligation to undertake comprehensive recordkeeping. The Public Records Act 2002 requires public authorities, includinggovernment departments, to make and keep full and accurate records of (their)activitiesiii. In addition, departments are responsible for the safe custody andpreservation of their recordsiv.

95. The Public Records Act 2002 authorises the State Archivist to make policy,standards and guidelines about the making, keeping, preserving, managingand disposing of public records, to which agencies must have regard inmeeting their record keeping obligationsv. The Archivist has issued a numberof Information Standards including the overarching Information Standard 40 -Record Keeping, as well as more specific standards including InformationStandard 31 - Retention and Disposal of Government Information andInformation Standard 41 - Managing Technology Dependent Recordsvi.

96. For all of the above reasons it is essential for administrative decision makingagencies to be aware of their record keeping obligations, and to implementprocedures and processes (including proper staff training) to ensure that record

keeping obligations are satisfied. Some important issues to keep in mindregarding record keeping include the following:

All information relevant to the decision making process should be thesubject of written records, including investigation reports and findings,details of telephone conversations with affected parties, and any othersearches undertaken or information gathered in the decision makingprocess.

Records should be maintained centrally. There are risks to effectiverecord keeping and decision making if documents relating to a particularmatter are kept in a number of different locations (for example, paper files,electronic files, diaries, loose notes).

Electronic records should be captured and stored centrally by agencies,particularly files and email correspondence stored on individual officerscomputers.

Records should be made contemporaneously. The veracity of records isput into doubt if there is a significant time lag between an event and therecording of the event.

Officers should always ensure that they act in a professional, objectivemanner. These qualities should also be reflected in officers notes andrecords of their activities. Many government records are subject tofreedom of information legislation, therefore officers should be careful toensure that their notes and records are an accurate and impartial recordof the event, and not drafted in a manner that could inadvertently be

interpreted as derogatory, emotive, or prejudicial by members of thecommunity.


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Privacy and confidentiality

97. Many administrative decision making agencies, particularly those withregulatory functions, collect a wide range of personal information aboutmembers of the community. For example, a person applying for a licence tooperate as a real estate agent may be asked to provide his or her name,

address, telephone number, relevant educational qualifications, criminalhistory, and a statement of whether he or she has previously been disqualifiedfrom holding a licence.

98. The management of personal information by Queensland Governmentagencies is managed by an administrative, rather than legislative, scheme.

The cornerstone of Queenslands approach is Information Standard 42-Information Privacy, which applies to all Queensland Government agencies.

99. Information Standard 42 adopts the eleven Information Privacy Principles (theIPPs) contained in the Commonwealth Privacy Act 1988. The IPPs set outrules for the:

collection; storage and security;

access and amendment;

accuracy; and

use and disclosure of personal information stored in paper orelectronic form.

100. In general terms, personal information is any information about an identifiableindividual, and includes a persons name, address, telephone number, date ofbirth, marital status, employment history, criminal history, financial and medicaldetails, and information about the persons family and relationships.

101. As part of the Queensland Governments privacy scheme, agencies havedeveloped individual privacy plans.

102. It is important to keep in mind that specific legislation can override theInformation Principles, and departmental privacy policies and guidelines. Ifagencies have any specific concerns about their obligations to protect peoplesprivacy, they should contact their Privacy Officer or legal advisors.

103. The management of personal information is a very important issue for manyadministrative decision making agencies. It is crucial that administrativedecision making agencies are aware of their responsibilities for protectingpeoples privacy, and that they implement systems, policies and procedures to

ensure that personal information is managed carefully and lawfully.


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Conduct of officers involved in the decision making process

104. As public sector employees, officers working within an administrative decisionmaking system are subject to a number of Acts which govern their conduct incarrying out their duties.

105. Apart from the Public Records Act 2002, and the Freedom of Information Act1992 mentioned previously, Acts governing the conduct of public officers in thecontext of administrative decision making can include:

Public Service Act 1996;

Public Sector Ethics Act 1994;

Crime and Misconduct Act 2001;

Ombudsman Act 2001;

Whistleblowers Protection Act 1994;

Anti-Discrimination Act 1991; and

Judicial Review Act 1991.

106. The Public Sector Ethics Act 1994 also obliges officers to comply with their ownagencys code of conductvii.

107. Building and maintaining knowledge of officers obligations under these Actsand relevant codes of conduct within an agency, as well as adopting policiesand procedures for ensuring that officers meet their obligations under theseActs and codes of conduct, enhances both the integrity and effectiveness of theadministrative decision making system.

4.5 Legal considerations for the development of policy and legislationunderpinning administrative decision making systems

108. Many administrative decision making systems, particularly those with regulatoryfunctions such as licensing, registration, and legislative compliance, are basedin specialised policy and legislation. This part of the report looks at the legalissues surrounding the creation and development of specialised policy andlegislation underpinning administrative decision making systems.

Developing po licy

109. Policy has been described as the process by which governments translatetheir political vision into programmes and actions to deliver outcomes - desiredchanges in the real worldviii.

110. All administrative decision making systems are based in policy.

111. The Queensland Policy Handbook (the QPH)ix, which is part of the GoverningQueensland series produced by the Department of the Premier and Cabinet,provides important information regarding the development and implementationof public policy in Queensland. The QPH identifies a number of legal issuesthat should be considered in the course of policy development, including thefollowing:

Does the policy have a lawful basis?


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112. All government policy must have a lawful basis. In other words, thegovernment must have the legal and constitutional authority to implement orcarry out proposed policy. According to the QPH, (t)he legal basis for publicpolicy is fundamental to every policy analysis, and every public policy proposalmust include consideration of its legalityx.

113. If in any doubt about the legal or constitutional validity of a policy proposal,agencies should seek appropriate legal advice.

Is the policy consistent with existing laws and legal frameworks?

114. To promote consistency within the law, policy proposals should, as far aspossible, be consistent with other Queensland laws, particularly laws of generalapplication, such as theAnti-Discrimination Act 1991 and the Public SectorEthics Act 1994.

115. Further, in the interests of avoiding unwarranted policy work and the creation ofunnecessary legal processes and infrastructure, policy proposals shouldendeavour to utilise existing legal frameworks wherever possible. For example,

the creation of new appeal bodies to review an agencys administrativedecisions should generally be avoided if an existing body could properlydetermine appeals or applications for review of the agencys decisions.

Will the policy be implemented by legislation?

116. Legislation is one of the ways of implementing policy. Often, when consideringlegal issues influencing the development of policy for an administrative decisionmaking system, it is also important to consider the relationship between policyand legislation.

117. As mentioned previously, many administrative decision making systems

(particularly those with regulatory functions) are established and governed byspecialised legislation. As a result, the development of policy for thesedecision making systems should include consideration of the legal issuesaffecting the development of this type of legislation. Legislative standards andfundamental legislative principles are considered below at paragraphs 121-128.

Does the policy satisfy current Government requirements?

118. Finally, while not strictly a legal requirement, it is important for officersdeveloping policy for administrative decision making systems to be aware ofthe Governments expectations regarding the characteristics of law and policy.

119. According to the QPH, the Government requires law and policy to be:

certain, meaning the law should be unambiguous, and that it shouldonly be changed for good reason, and in full knowledge of theimplications of the change;

accessible, meaning people know where to find the law and policy,and can readily understand their rights and obligations;

equitable, meaning that all people are treated equally under the law;and


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fair, meaning that the law or the policy is not harsh, that naturaljustice is provided and that administrative decisions can be reviewedappropriately.xi

120. Section 19 of the Freedom of Information Act 1992 Qld (the FOI Act) providesthat an agency must make copies of each of its policy documents available for

inspection and purchase by members of the community. The term policydocument is comprehensively defined in section 7 of the FOI Act to coverdocuments about how an agency proposes to administer statutory powers oradministrative schemes that are liable to affect the rights or interests ofmembers of the community. Section 19(3) of the FOI Act provides that a personmust not be subjected to any prejudice because of the application of theprovisions of an agencys policy document to any act or omission of the person,if at the time of the act or omission

(a) the policy document was not available for inspection orpurchase; and

(b) the person was not aware of the provisions; and(c) the person could lawfully have avoided the prejudice had the

person been aware of the provision.

Developing Legislation

121. As mentioned previously, legislation is one of the ways of implementinggovernment policy. Many administrative decision making systems are governedby their own specialised legislation.

122. Queenslands Legislative Standards Act 1992 (the LSA) aims to ensure that thestates legislation is of the highest standard, and that it satisfies certainfundamental legislative principles. These principles require that legislationhas sufficient regard to the rights and liberties of individuals, and to theinstitution of Parliamentxii.

123. Many administrative decisions, particularly regulatory decisions, have seriouseconomic and social consequences for members of the community. Forexample, a decision to refuse to renew an occupational licence such as a realestate agents licence or motor dealers licence could have significant financialand commercial impacts for the proposed licensee. Similarly, a decision toextend permitted trading hours allowed under a liquor licence could haveimportant social impacts for people living in close proximity to the licensedpremises. Therefore, legislation establishing and governing these types ofadministrative decision making systems must have adequate regard to therights and liberties of individuals.

124. The LSA provides a number of indicators to assess whether legislation hassufficient regard to the rights and liberties of individualsxiii. The relevantlegislation should:

make rights and liberties, or obligations, dependent on administrativepower only if the power is sufficiently defined and subject to appropriatereview; and

be consistent with principles of natural justice; and

allow the delegation of administrative power only in appropriate cases andto appropriate persons; and


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not reverse the onus of proof in criminal proceedings without adequatejustification; and

confer power to enter premises, and search for or seize documents orother property, only with a warrant issued by a judge or other judicialofficer; and

provide appropriate protection against self-incrimination; and

not adversely affect rights and liberties, or impose obligations,retrospectively; and

not confer immunity from proceeding or prosecution without adequatejustification; and

provide for the compulsory acquisition of property only with faircompensation; and

have sufficient regard to Aboriginal tradition and Island custom; and

be unambiguous and drafted in a sufficiently clear and precise way.

125. A number of these matters, including natural justice, delegations, and reviewrights, are addressed in more detail throughout the report.

126. While the Office of the Queensland Parliamentary Counsel (OQPC) and theParliamentary Scrutiny of Legislation Committee play central roles in ensuringthat proposed legislation meets the requirements of the LSA, it is also importantfor departmental officers to keep the principles in mind when devisingadministrative decision making systems.

127. There are a number of other Queensland Acts which regulate the creation anduse of legislation including:

Statutory Instruments Act 1992;

Reprints Act 1992; and

Acts Interpretation Act 1954.

128. The process of preparing and progressing legislation is technical andcomplicated. The Queensland Legislation Handbook, also part of theDepartment of the Premier and Cabinets Governing Queensland series,provides an accessible overview of the important issues affecting thedevelopment of Queensland legislation.


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Chapter 5: Corporate Communications

5.1 Corporate Communications and the Better Decisions Framework

129. It is well established that effective communication with clients, staff and otherstakeholders enhances the ability of an organisation to carry out its functionssuccessfully and to achieve its goals. In the context of the public sector, it isalso clear that the community expects to be able to communicate freely, easily,and meaningfully with government agencies and decision makers.

130. There are, of course, many issues for organisations to consider regardingcommunication, most of which are outside the scope of the Better DecisionsFramework. This report does, however, focus on three main aspects ofcorporate communication within agencies that need to be part of, or recognisedin, the Framework.

131. Firstly, the report examines the benefits of administrative decision makingagencies adopting service charters. Secondly, the report looks at benefits ofproviding clients with general guidelines and information about the substantivebusiness of an agency and the agencys decision making processes. Finally,the report considers how the effectiveness of an administrative decision can beinfluenced by how well the agency communicates with affected peoplethroughout the decision making process.

132. Before turning to these issues it is important to note that, in designing andimplementing their communication strategies, public sector agencies must haveproper regard to the communication needs of their clients and stakeholders.For example, agencies need to have arrangements in place so that allmembers of the community, including people with a disability, people with

limited literacy, and people from a non-English speaking background, canaccess information about the agency, and meaningfully communicate with theagency.

5.2 Service Charters

133. Many organisations, both in the public and private sectors, have developed andadopted service charters as a means of building and enhancing relationshipswith clients and customers.

What is a service charter?

134. In its simplest form, a service charter is a written statement by an organisationabout the services it provides, and how it goes about providing those services.Ordinarily organisations make their service charter available to their clients andthe public generally.


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What should be included in a service charter?

135. There are no strict rules about what an organisation should include in itsservice charter. Often the details of what is included in a service charter willdepend on the individual characteristics of the organisation, its clients andstakeholders, as well as the nature of the services provided by the

organisation.

136. In 1997 the Commonwealth Government required its departments andagencies to develop and implement service charters based on a stated set ofprinciples. According to the principles, service charters should:

clearly identify the agency, the agency's purpose, its customer base andits services;

detail information which facilitates communication between the agencyand its customers;

set out the agency's customer service standards and customer rights andresponsibilities;

articulate the agency's policy on obtaining feedback and handlingcustomer enquiries and complaints;

be developed in consultation with customers, staff and key stakeholders;

be designed and promoted in a format and style suitable for an agency'scustomers;

be supported by complaints handling mechanisms for resolving customercomplaints;

commit the agency to monitoring and reviewing arrangements; and

require the agency to account publicly for its operations by publishing itscustomer service charter and information on its compliance with thecharter and the agency's service performance.

137. Service charters have also been considered by the United KingdomGovernment, which has developed a number of best practice guides and anaccreditation program called Charter Mark to assist agencies to improve theirservice delivery. Good charters, under the UK model, are:

simple, accessible living documents which tell the users about anorganisations service, and the standards it will provide;

supported by well developed systems and procedures including stafftraining, complaints handling and feedback, as well as mechanisms forreporting, evaluating and reviewing the standards; and

publicised in management and public documents, so that the organisationis publicly accountable to users for delivering its standards.xiv

How do service charters enhance administrative decision makingsystems?

138. The adoption of a service charter can enhance administrative decision makingin a number of important ways. For instance, service charters:

focus the agency and its staff on providing responsive, quality services;

provide staff with clear guidelines about what the agency expects of themin terms of providing services;


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enable customers to become informed about the agency and its services,and as a result form realistic and reasonable expectations about theagency;

promote accountability and integrity in the agency;

make the agency more open and accessible to clients;

improve clients perceptions of the agency;

set out a framework for how the agency addresses problems andcomplaints;

provide a benchmark for measuring and assessing the agencysperformance; and

assist in the identification of potential improvements to services.

139. For all of these reasons, developing, and adopting a service charter cansignificantly enhance administrative decision making systems.

5.3 General information about an agencys business and decisionmaking processes

140. Service charters provide clients and stakeholders with information about anagency, usually including details of the services the agency provides and thestandards the agency strives to achieve.

141. However, there are also benefits in providing clients and stakeholders withgeneral information about the substantive business of the agency and theagencys decision making process.

142. Accessible, plain English information sheets or brochures on the business ofthe agency, and the agencys decision making processes, can enhanceadministrative decision making systems in a number of ways, for example:

Clients will be more likely to develop reasonable, realistic expectations ofhow the decision making process operates. This can reduce enquiries aswell as clients uncertainty and anxiety about the decision makingprocess.

The decision making process can be streamlined by helping clientsbecome aware at an early stage of their rights and responsibilities in thedecision making process, such as any requirements for clients to provideparticular documents or other information.

General information about the business of the agency and the legislationthat the agency administers may also help focus clients on relevant issuesin their communications with the agency.

143. Of course, to be effective, this type of information should be widely accessibleto clients. Clients should be able to access the information at service centres,directly from the agency, and via the internet.


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5.4 Communicating with clients through the decision making process

144. As well as providing clients with general information about the agency, itsbusiness and its processes through service charters and information sheetsand brochures, it is crucial for agencies to communicate effectively with clientsthroughout the decision making process.

145. Common written material that an agency may disseminate in the course ofmaking an administrative decision include:

application forms;

correspondence acknowledging receipt of applications and otherdocuments;

correspondence requesting parties to provide further information;

notices inviting affected people to make submissions about a matter;

correspondence informing parties of the progress of the matter;

notification of a decision and the reasons for the decision, including noticeof appeal rights; and

correspondence to parties after the decision has been issued.

146. In addition, agencies may be approached via the telephone or personally bypeople with questions or concerns about the decision making process.

147. To communicate effectively with clients, administrative decision makingagencies should ensure that the information provided by staff is:

accurate;

sufficiently informative;

responsive and timely; and

in plain English, avoiding technical terminology as much as possible.

148. Officers should also ensure that they avoid making assurances or promisesthat the agency might not be able to keep.

149. By focusing on the quality of its communication with clients, agencies canpromote a positive perception of their services and performance, as well asavoid the dissatisfaction that can arise if clients feel ignored or misinformedabout the agency and its administrative decision making process.


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Chapter 6: Management Practices

6.1 Management practices and the Better Decisions Framework

150. Like most organisations, the ability of a public sector agency to carry out itsfunctions successfully can depend on how effectively the agency is managed.Of course, the overall management of an agency encompasses a wide range ofoperational matters, as well as finance, human resources, communication andreporting issues.

151. While the report does not address organisational management in detail, thispart highlights two broad management issues that should be included in theFramework because they particularly relate to administrative decision makingfunctions.

152. Firstly, the Framework must include processes for facilitating the building andretaining of knowledge within an agency about administrative decision making.Secondly, the Framework must make provision for the proper delegation ofadministrative decision making powers and functions.

6.2 Build ing and retaining knowledge about administrative decisionmaking

153. In order to make fair and lawful decisions, administrative decision makers musthave a thorough working knowledge of both the specific business of theagency, as well as the broader principles of administrative law andadministrative decision making. A challenge for managers of agencies makingadministrative decisions is building and retaining an appropriate level ofcorporate knowledge and expertise regarding these matters within theirorganisation.

154. The Queensland Ombudsman has produced an Easy guide to goodadministrative decision-makingxv which, as the title suggests, sets out generalprinciples of effective administrative decision making. As well as being ahelpful source of information for decision makers, the guide is a usefulreference for agencies preparing policies and procedures, or designing stafftraining programs, with regard to administrative decision making.

Staff training and resources

155. Comprehensive training for staff in both general administrative decision makingprinciples, as well as the substantive business of the agency, will enhance theability of the agency to produce lawful and well considered decisions. Ofcourse the style and level of training that would be appropriate for particularstaff will depend on their expertise and their role within the administrativedecision making system.


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156. Similarly, providing staff with access to relevant and appropriate resources andreference material to assist them to research and resolve issues aboutadministrative decision making will contribute to the agencys ability to makelawful and effective decisions.

157. However, it is important to bear in mind that administrative decision making

agencies operate in a dynamic and continually changing environment. Legaldevelopments, as well as changes in government priorities and communityexpectations, can all impact on administrative decisions and decision makingprocesses. For example, the outcome of an appeal or review of an agencysdecision may require the agency to adjust part of its decision making process,or its interpretation of a term or provision of legislation.

158. To operate effectively, administrative decision making agencies must beresponsive to changes in the environment within which they operate. Stafftraining, as well as references and resources used by decision makers, shouldbe regularly reviewed and updated to reflect contemporary developments andissues.

Written guidelines for staff: Policies and procedures

159. As mentioned previously, many administrative decision making systems aregoverned by specialised legislation. However, it should be acknowledged thatofficers working in an administrative decision making system, perhaps in a non-decision making role, may not be familiar or comfortable with reading andapplying legislation.

160. Furthermore, Acts establishing and regulating administrative decision makingsystems do not, generally speaking, exhaustively address each and everyaspect of the administrative decision making process or system. Administrative

decision making agencies are regularly faced with scenarios and questions thatare not specifically covered by their legislation, and must make decisions onhow to address these issues.

161. For example, while an Act may require an agency to apply the principles ofnatural justice in making a decision, it may not detail the actual steps that thedecision maker must follow to satisfy the requirements of natural justice.Similarly, while legislation may require a decision maker to investigate relevantissues prior to making a decision, and may also provide the decision makerwith particular investigative powers, the legislation may not state in detail whenand how investigative powers should be exercised.

162. To address these issues many agencies develop and adopt written policies and

procedures, often presented to staff in the form of a manual.

163. Written policies and procedures can enhance administrative decision makingsystems in a number of ways. For example, they can:

provide valuable guidance for staff on how to approach the decisionmaking process;

promote consistency in the agencys approach to decision making; and


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demonstrate openness, transparency and accountability in the decisionmaking process by objectively detailing how the agency approachesadministrative decision making.

164. However, the use of policies and procedures must be somewhat qualified:

Firstly, policies and procedures must be regularly reviewed andupdated, particularly in light of changes in community expectations andgovernment priorities, legal developments and feedback from reviews,appeals and complaints about the agencys decisions.

Secondly, policies and procedures should be used as a guide only. It isimportant for staff to bear in mind that policies and procedures are notlaw, and do not replace legislation or administrative law principles.Policies and procedures should not be applied arbitrarily or withoutconsideration of the merits of the individual case.

165. While there are some limitations in their use, written and up to date policies andprocedures can be a powerful way of enhancing administrative decision makingwithin government agencies.

Record keeping

166. Chapter 4 considered the importance of proper record keeping in administrativedecision making agencies on the basis of best administrative practice, as wellas the requirements of the Public Records Act 2002.

167. Chapter 4 also explained how proper record keeping leads to improveddecision making through better quality information, more meaningfulstatements of reasons, and enhanced transparency and accountability in theagencys decision making process.

168. Proper record keeping also plays an important role in building and retainingcorporate knowledge within an agency. While every decision must beconsidered on its individual merits, maintaining accessible records of previousdecisions, research and investigations improves decision making within anagency in two main ways:

By being aware of previous decisions of the agency, decision makers canaim for reasonable consistency in the agencys approach to similarmatters and scenarios.

Records of previous decisions may enable decision makers to avoidunnecessarily reinventing the wheel. For example, a previous decisionmakers research and reasoning regarding a particular matter may be a

good starting point for a decision maker determining similar issues.

169. For all of these reasons, it is essential for managers of administrative decisionmaking agencies to ens

better decisions project framework report-management project reference

Documents