MAKING GOOD DECISIONS
The Commonwealth’s legal framework for decision-making
is based on the general principles of administrative law
and the following key pieces of legislation:
- the Constitution, especially section 75
- the Judiciary Act 1903, especially section
39B
- the Administrative Decisions (Judicial Review)
Act 1977
- the Administrative Appeals Tribunal Act 1975
- the Ombudsman Act 1976
- the Freedom of Information Act 1982
- the Privacy Act 1988
- the Racial Discrimination Act 1975, Sex
Discrimination Act 1984 and the Disability
Discrimination Act 1992.
Sources of Commonwealth power
The Comonwealth exercises a range of powers that are often
discussed in terms of three broad categories—executive,
prerogative and statutory.
- Executive power is vested in the Queen and is exercisable
by the Governor-General (Constitution section 61) and
the ministers responsible for the departments of state
established by the Governor-General (Constitution section
64). The Constitution also confers specific executive
powers on the Governor-General, or on ‘the Governor-General
in Council’.
- Government can exercise the traditional and non-statutory
prerogative power of the Crown, such as the power to
conduct foreign affairs (negotiate, conclude and ratify
treaties), make war and peace, and grant mercy.
- Statutory power may be conferred by legislation on
the Governor-General, a Minister, the Secretary of a
department of state or any of a range of other persons.
The Commonwealth’s administrative decisions, which
include the decisions of the Governor-General, Ministers
and others who act for the Commonwealth, must:
- be made within the limits of the powers outlined above
- comply with any specific limitations imposed on particular
powers
- satisfy general administrative law requirements.
These principles are of less direct relevance to more
informal government processes, such as the development
of policy and general consultation.
Specific limitations
Where the Constitution or a statute creates a power, it
will generally identify who can exercise that power. It
may also regulate how the power is to be exercised, even
to the extent of providing for special procedures in particular
circumstances.
In most cases, the holder of the office in which the Parliament
vests a power may designate another person as someone who
may exercise the power or perform functions related to
the exercise of the power. This process is likely to take
one of two forms. The person in whom statutory power is
initially vested may use:
- a statutory procedure to delegate a power to another
person, or
- a statutory or implied power to authorise an official
to exercise the power on that person’s behalf.
Generally, a change in officeholder, or the designation
of an office, does not affect delegations. But this is
not the case for authorisations. It is essential for authorisations
to be reviewed and remade in these circumstances. It is
also good practice to review and remake delegations in
such circumstances.
Reviews of delegations or authorisations should involve
consideration of the particular functions or powers in
question, and identification of any functions or powers
that should be exercised personally by a Minister or other
senior officeholder.
General administrative law requirements
In addition to any specific requirements, there are administrative
law principles, which the courts and Parliament (through
the Administrative Decisions (Judicial Review) Act) have
developed, that usually apply. How relevant a particular
principle is to a given decision depends on a range of
factors. However, some general principles are relevant
to the exercise of most statutory discretions.
Persons affected by a decision are often entitled to procedural
fairness, also known as natural justice, in relation to
the decision. The actual procedure required will vary with
the circumstances of the case. However, in general, the
minimum requirements of procedural fairness are satisfied
if the decision-maker is not biased, and if the affected
individual is given a reasonable opportunity to comment
on any relevant material adverse to that individual.
A decision-maker must take into account all relevant considerations
and not be guided by irrelevant considerations. The terms
of the statute that confers the particular power, and the
scope and purpose of that statute, may assist in determining
what matters must, what matters may and what matters must
not be taken into account in the exercise of the power.
Generally, a person who exercises a power must not act
under ‘dictation’. If legislation gives a designated
person the power to decide something, no one else may require
that person to make a particular decision. A person can
have regard to relevant rules or policies, but should not
exercise a discretionary power in accordance with an administrative
rule or policy without regard to the merits of the particular
case.
It is often necessary for a decision-maker to consider
whether sufficient evidence exists to justify a particular
finding or decision.
Failure to act within a power, or to comply with specific
limitations or general administrative law principles, can
result in the review and overturning of a decision. Various
mechanisms exist to assist the review of decisions, including
requirements that decision-makers provide reasons for,
and documents relevant to those decisions.
Review of decisions
There are various avenues for judicial and non-judicial
review of administrative decisions at the federal level.
They include:
- Parliament and Parliamentary committees
- the High Court and Federal Court
- external administrative review bodies, such as the
Administrative Appeals Tribunal and other subject or
portfolio-specific tribunals, the Ombudsman, the Human
Rights and Equal Opportunity Commission, the Privacy
Commissioner and the Auditor-General
- internal administrative review bodies and processes
within particular departments and agencies, which may
be established by statute or simply by administrative
arrangement.
Judicial review
The Constitution itself provides for review by the High
Court. Legislative reform has, to a large extent, obviated
the need to rely on the complex, traditional processes
of judicial review. In particular, the Administrative Decisions
(Judicial Review) Act provides for a simple application
for an order of review in relation to most administrative
decisions made under the authority of an enactment, and
confers on the Federal Court very wide powers to make orders
for substantive relief.
An order of review may be sought under the Administrative
Decisions (Judicial Review) Act by a ‘person who
is aggrieved’ by the decision, conduct or failure
to make a decision. Any person whose ‘interests are
or would be adversely affected’ by the decision is
a person ‘aggrieved’ by that decision.
The grounds on which an order of review may be sought
under the Administrative Decisions (Judicial Review) Act
are codified in that Act. These grounds effectively cover
failure to comply with the specific requirements and the
general administrative law principles, referred to above.
Merits review
Courts review the legality but not the merits of a decision.
The Administrative Appeals Tribunal’s function, on
the other hand, is to review the merits of relevant decisions
of Federal Ministers, officers and authorities. It is empowered
to decide that, while a particular decision may be legally
correct, it is not necessarily the preferable decision
and should be substituted. While the Tribunal has not been
invested with a general appeal jurisdiction, it has power
to review many kinds of decisions made under a variety
of legislation.
In addition, or as an alternative, to the Tribunal, there
are other Commonwealth tribunals that review the merits
of Australian Government decisions, for example in the
areas of social security, immigration, veterans’ entitlements,
public sector discipline and merits, and discrimination.
Apart from these tribunals, the Commonwealth Ombudsman
has broad powers to investigate complaints about administrative
action and to make recommendations to the department or
authority concerned and to the responsible Minister. In
some circumstances, the Ombudsman may inform the Prime
Minister of matters, and make special reports to Parliament.
The Ombudsman has considerable powers under the Ombudsman
Act 1976 to obtain information and may investigate
administrative action of his own motion.
The Privacy Commissioner has power to investigate complaints
of breaches of privacy by Commonwealth agencies in relation
to individuals’ information. The Privacy Commissioner
has ‘own motion’ powers to investigate and
audit agency practices and may award compensation without
limit.
There are also internal administrative review bodies and
procedures operating within particular departments and
agencies. The enabling legislation or administrative arrangements
for internal review bodies establish their powers and functions,
and the nature and extent of their respective ‘jurisdictions’.
Reasons and documents
The Administrative Decisions (Judicial Review) Act confers
on an ‘aggrieved person’ a right to obtain
written reasons for the decision in question. The person
may request a written statement setting out the findings
on material questions of fact, referring to the evidence
or other material on which those findings were based and
giving reasons for the decision.
A similar right arises under the Administrative Appeals
Tribunal Act, which allows any person entitled to
apply for review of a decision by the Tribunal to request
the person who made the decision to furnish a similar
written statement.
Other Commonwealth Acts also provide rights to written
reasons for particular decisions. Where such a right exists,
section 25D of the Acts Interpretation Act 1901
sets out what the reasons must contain.
As to documents relevant to a decision, the Freedom
of Information Act imposes a legal duty to provide
members of the public with access to government information,
including official documents of ministers, unless those
documents are exempt from disclosure under specific provisions
of the Act.
Additionally, the provision of access to documents forms
part of the review process. Judicial review often requires
disclosure of the documents upon which the decision was
based. When an application for review is made to the Administrative
Appeals Tribunal, the decision-maker is required to lodge
copies of the relevant statement of reasons and findings
on material questions of fact with the Tribunal, together
with every other document in the decision-maker’s
possession or control that is relevant to review by the
Tribunal. A similar requirement is established in relation
to many other review procedures.
More information
For more information on decision-making in the public
service and challenges to decisions, contact:
© Australian
Government Solicitor
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