We acknowledge and thank the Queensland Ombudsman for allowing us to make use of their material for this section.
Today people expect that organisations will operate consistently and fairly and that they will have developed and implemented systems to ensure that this happens. Good administrative decision-making is integral to this process.
Good decision-making lies at the heart of good administration. Even a decision about a seemingly simple matter can have a serious impact on the community. So it is important that organisations have systems in place to support fair and consistent decision-making.
Maintain a document trail
Comprehensive and timely record-keeping is central to good decision-making.
The Archives Act 1983 (Tas) requires public agencies to keep and preserve proper records of their activities.
Decision-making is a key agency activity. All information relevant to the decision-making process should be recorded.
Records should be made at the same time or as soon as practicable after the actions they relate to. If this is not done, the reliability of the record may be called into question.
Good records provide decision-makers with detailed information, explain decisions, help decision-makers prepare a statement of reasons, and enhance accountability and transparency.
Identify the power to make a decision
Clear legislative authority is necessary for a decision that may adversely affect someone’s rights or interests.
The legislative power to make a decision may be limited by specified factors, including time. Even if legislation or your organisation’s policy does not specify a timeframe, the decision-maker must take action as soon as practicable.
Check you have identified the source and limits of the power to make the decision.
Consider the authority and suitability of the decision-maker
Legislation usually establishes who is authorised to make a particular decision.
An authorised person or body must exercise the decision-making power personally. An exception to this is when the decision-maker is given a power in the relevant legislation to delegate decision-making. The Acts Interpretation Act 1931 (Tas) sets out the rules for exercising delegated authority. Delegations can be general or limited, but all delegations must be in writing and signed by a suitable member of the authorised body or the person delegating the power.
A decision-maker should not be involved in a decision where a conflict of interest exists, even if the decision-maker has the proper delegation or authority.
A conflict of interest occurs where a person’s private interests interfere or could appear to interfere with their official duties. It may arise from financial or personal interests. There can be an actual, perceived or potential conflict of interest.
A conflict of interest should be recorded and reported to management to be resolved in the public interest.
Check your authority and suitability to make the decision by considering delegations and any conflict of interests.
Identify relevant matters
At the outset, decision-makers must identify all matters relevant to the decision to be made.
If the relevant matters are not correctly identified and considered, the decision-maker is more likely to make a poor decision.
Check you have identified relevant matters by considering the legislation and your organisation’s policy.
Follow procedures
Following procedures is a vital part of good decision-making.
Procedures provide the steps that have to be followed to achieve a specific legislative or policy purpose.
Statutory procedures are set out in legislation. Strict compliance is usually required.
Administrative procedures are developed by organisations. The procedures must be consistent with the law, reasonable in the particular circumstance, and not based solely on cost or convenience.
Check you have complied with all applicable statutory and administrative procedures.
Gather all relevant information
Gathering all the relevant information allows the decision-maker to properly determine the facts. Information is relevant if it is reasonably related to a matter.
Legislation may give a decision-maker powers to gather information for specific purposes. Even if legislation does not give powers to collect information, however, the decision-maker may still request information.
Decision-makers should make reasonable and practical inquiries to collect the best and most current information available. This may include verbal accounts, documents, site inspections and expert opinion.
Check you have gathered and recorded all relevant information.
Provide procedural fairness
Procedural fairness is about providing a person who might be adversely affected by a decision a ‘fair hearing’ before the decision is made.
Generally, a fair hearing involves disclosing to a person any allegations or assertions made against them. Reasonable steps should be taken to notify the affected person.
The person should be given a reasonable opportunity and time to respond to the allegations or assertions. They should be notified of the key issues and be given enough information to participate meaningfully in the decision-making process.
The decision-maker should genuinely consider the affected person’s submission when making their decision. The decision-maker should be seen to be impartial and open to persuasion on the information and arguments presented.
Check that you have provided a fair hearing to anyone who may be adversely affected by the decision.
Determine the facts
Decisions should be based on facts.
The decision-maker should determine the facts by considering information that is relevant, reliable and sufficient.
All relevant information should be considered and should not be dismissed without good reason.
Not all information is equal in value or reliability. The decision-maker should analyse the information gathered and weigh it up reasonably.
Unless legislation requires otherwise, the balance of probabilities guides administrative decision-makers when determining the facts. The more serious the issue and outcome, the more caution should be exercised in order to meet this standard.
Each factual finding should be clearly recorded, including the information considered and the reason for the finding.
Check that your factual findings are based on sufficient, relevant and reliable information. Your findings should be clearly identified and explained.
Evaluate the facts to make the decision
Evaluating the facts is the final step in reaching a decision.
One important consideration in evaluating the facts is whether the decision to be made is non-discretionary or discretionary.
A non-discretionary decision is one where the legislation sets out what must be considered and how it is to be decided. The decision-maker does not have any flexibility.
Decision-makers need to identify the legislative provisions that relate to their decision. A piece of legislation should be interpreted in a way that best achieves its purpose and objectives. Court and tribunal decisions, legal advice and agency policy can provide guidance on the meaning and application of legislation.
The decision-maker should apply the law to the facts when making the decision.
In contrast, a discretionary decision gives the decision-maker some flexibility. The legislation does not impose a duty on the decision-maker to exercise their power in a particular way. It is usually indicated by the use of the word ‘may’.
No one matter or combination of matters necessarily determines the making of a discretionary decision. When making a discretionary decision, the decision-maker must ensure that all relevant matters are considered and given appropriate weight, and that no irrelevant matters are taken into account
The decision-maker may also consider agency policy and relevant previous decisions in reaching the decision. Again, irrelevant matters must not be considered and agency policy and practice must not be applied inflexibly. The decision and reasons for the decision should be recorded.
Check you have properly evaluated the facts in reaching your decision.
Give meaningful and accurate reasons for your decision
It is important that people affected by an organisation’s decisions are informed of the decision, the reasons for that decision and any right of review or appeal.
Reasons are defined in the Judicial Review Act 2000 (Tas). Reasons are the logical explanation for a decision and should refer to the factual findings and the information on which the findings are based. Failing to refer to a factual finding may indicate a relevant matter was not considered.
Providing reasons for a decision helps avoid misunderstandings and promotes acceptance of adverse outcomes. They reduce the likelihood of ill-informed complaints, reviews and appeals.
Even where a decision-maker is not required to give reasons, it is good administrative practice to do so. Also, an affected person may be able to request a statement of reasons under the Judicial Review Act.
Decision-makers should also offer advice about any right of appeal, including the time allowed to make the appeal and how to apply.
If there is no statutory review or appeal process, the affected person should be advised about the organisation's complaint management system.