Am I Safe? Am I Legal?

Administrative Law and Governance

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DATE PUBLISHED: December 9, 2019

Airline pilots use the mantra - “Am I safe? Am I legal?” in decision-making on a daily basis. Crew Resource Management (CRM) allows for no-fault banter between pilots and continual checks and balances.  Pilots get us to where we need to be - they keep us safe. The airline industry is considered as the ‘high-bar’ in decision-making.

Government administrative decision-makers make critical decisions on a daily basis and those decisions can have an adverse impact on the rights, liabilities and entitlements of members of the public – but what is good administrative decision-making?

Have you, or your agency thought about how you ensure the right principles are adopted and good decisions are made by your decision-makers?  If you haven’t had time this year, make the following four part of your New Year’s Resolutions.

BACKGROUND:

In 2007 the Commonwealth Ombudsman’s reviewed 247 cases of immigration detention and identified legal, factual and administrative errors. Errors that can be avoided, mitigated or at the very least, managed.

Ten simple principles of good administration were subsequently issued by the Commonwealth Ombudsman in fact sheet: “ten principles for good administration”. These principles also identified ways to avoid similar errors from occurring in other areas of government decision-making.

Whilst all of these principles are as relevant today as they were in 2007, the following four are common issues across all agencies.  Addressing, and continually reviewing these matters will help mitigate errors and issues in decision-making for agencies:

1. Safe-guards against erroneous assumptions – does your training for decision-makers provide clear and practical guidance on how officers can be wrongly influenced? We all rely on our knowledge, experience and practical judgment. This can contribute to efficient, sensible and consistent decision making, yet there is risk that officers who are accustomed to dealing with particular problems will be unthinkingly influenced by assumptions that lead to error. This may include discounting relevant information or lines of enquiry or even giving undue consideration to irrelevant or unconvincing information. Training and guidelines provided to decision-makers must give clear and practical advice on what to consider when making a discretionary decision. Agencies should also regularly monitor, review and conduct quality assurance of all areas of discretionary decision making, including training and reasons for decisions recorded.

2. Actions to avoid administrative drift – do you have procedures to address delays in decision-making? At times delay may be unavoidable, but there may also be times when matters simply drift. Delay and procrastination will occur unless there are procedures in place to stop that happening. Whilst realistic timeframes are normally built into decision making processes, these need to be supplemented by formal procedures for reviewing and escalating cases that breach those timeframes. Agencies should regularly monitor and review the time taken to make individual decisions, and examine those that have taken longer than expected to see if there is a systemic problem. Areas of potential delay should be identified and strategies put in place to guard against that risk.

3. Frank and fearless safe-harbour in decision-making – do you have a safe-harbour for contestability? Providing a safe harbour and encouraging staff to draw attention to errors in decision-making can help improve decisions and outcomes.  Staff should be provided safe zones within which to workshop alternative approaches to dealing with problems, discuss issues and contest ideas. Decisions which are complex or have been reversed on review should also be examined to see if there are systemic issues and/or whether legislative changes are needed to address difficulties in decision-making. Staff should be encouraged to draw attention to difficulties in decision making and to workshop alternative approaches to dealing with problems in a no-blame environment. No doubt all agency officers understand that it is their responsibility to ensure that problems are not overlooked or hidden – but as demonstrated in the Airline Industry – organisations who provide a safe-harbour within which to be frank and fearless, reap greater outcomes.

4. Emerging problems – are a certainty in any organisation, and a chance to learn and improve. Through complaint handling, internal monitoring and quality control, agencies can pick up the warning signs and initiate reform before issues get out of control. Many agencies already systematically review complaints to the agency and the Ombudsman.  In addition agencies should also monitor and review relevant court and tribunal decisions, to see if they highlight problems that need to be addressed. Agencies should actively look for and respond to administrative weaknesses highlighted by individual cases and encourage staff to identify and report on errors and problems. Difficulty and complexity in decision-making should also be controlled by quality assurance, oversight and review of decisions, particularly in areas where a large number of decisions are made under tight pressures.

Good decision-making is decision-making that gives effect to government objectives and does so fairly in accordance with legal obligations.  Continually reviewing the four principles will help agencies make improvements and support decision-makers to reach correct and preferable decisions.

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Am I Safe? Am I Legal?