Good administrative decision-making is a central part of government as all administrative action is supported by administrative decisions. In this article, Kristina Mihalic and Ali Gorman identify seven practical steps that decision-makers can follow to ensure their decisions are as fair and robust as possible.
1. Consider the decision making-power and whether the decision-maker is authorised to make the decision
The exercise of a statutory power to make decisions always starts with two fundamental questions:
- in whom has the statutory power formally been vested? and
- who can exercise that power?
The answer to these questions is found in the legislation. The relevant legislation should be consulted to:
- identify the source and scope of the power to make the decision, including whether the power is discretionary or non-discretionary. Decision-makers must correctly identify the legislative provision(s) that underpin the decision that is being made; and
- ensure that the proposed decision-maker has the power to act or to make the decision. This may require consideration of any instruments of delegation or authorisations issued by the repository of the power.
2. Identify applicable procedures that the decision-maker should follow when making the decision
During the decision-making process, decision-makers should follow lawful and fair procedures and provide natural justice to people affected by a decision. The procedures that should be followed when making a decision can be found in different sources:
- statutory procedures – legislation may require that procedures be followed before a decision can be made (e.g. consultation). Decision-makers must ensure they comply with any mandatory procedures in the legislation; and
- administrative procedures – if no procedures are set out in the legislation, a decision-maker has discretion as to the procedure to follow. However, the procedure adopted by the decision-maker should be reasonable in each circumstance, having regard to the underlying purpose of the legislation and the power being exercised. Written procedures developed by an agency may also exist and provide guidance on the decision-making process.
3. Gather information and establish the facts
Before making a decision, decision-makers should gather information. When gathering information, the focus should be on relevant factual matters to be proved and considered as these will form the basis for findings of facts in a statement of reasons.
Information that is relevant to a decision can be obtained from different sources including, for example:
- evidence or submissions provided by the person who is the subject of the decision (e.g. submitted with an application made to the decision-maker or through a request made by the decision-maker);
- evidence obtained using information gathering powers provided for in the relevant legislation; and
- information obtained pursuant to information sharing arrangements.
4. Evaluate the evidence
Decision-makers should evaluate and weigh up the evidence before them to determine the relevant considerations and material facts. A material fact is one whereby the existence or non-existence of the fact can affect the decision. It is a fact which was considered and formed the basis of the decision-making. It is important to remember that not all facts will be material, and the identification of material facts goes beyond merely setting out a chronology.
The evidence before the decision-maker must be relevant to the questions that the decision-maker is to determine and accurate so that many material facts can be established. When evaluating evidence, decision-makers must also ignore irrelevant considerations. Irrelevant considerations are matters which are not required to be considered by the legislation and/or prohibited from being considered having regard to the subject matter, scope or purpose of the power.
5. Observe procedural fairness principles
The starting point when exercising a decision-making power is that the decision-maker is obliged to afford procedural fairness to a person whose interests may be adversely affected by the decision, unless there is a clear contrary intention: Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326, per Kiefel, Bell and Keane JJ.
In administrative decision-making, procedural fairness relates to the fairness of the procedure that was followed in making a decision, and not the fairness of a decision in a substantive sense. In Kioa v West (1985) 159 CLR 550, 558, Mason J stated that ‘the expression “procedural fairness” … conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case’.
Procedural fairness typically involved two requirements: (1) the rule against bias; and (2) the fair hearing rule.
- provide adequate prior notice of a decision that may affect a person’s interests;
- disclose to the affected person the critical issues on which a decision will turn and information that is adverse to the affected person’s interests. This may include providing relevant information, evidential material or a summary of the information to the affected person;
- provide the affected person an adequate opportunity to present their case prior to the decision being made.
6. Make the decision
Once the affected person has had an opportunity to review and comment on the information that the decision is likely to turn on, the next step is to proceed to make a decision and prepare reasons for the decision.
At its most basic level, administrative decision-making is about answering questions. The questions the decision-maker needs to answer are usually in the form of statutory requirements that must be satisfied before a decision can be made. Administrative decisions often include the exercise of discretion. Discretion exists when the decision-maker has latitude as to the decisions reached, with the width of the discretion varying according to the context and statutory objects.
A statement of reasons is used to explain how the decision-maker arrived at the decision and should set out:
- the decision that is being made;
- the decision-maker, the source of the decision-maker’s power and the legislative provision the decision was made under;
- details of any procedural steps undertaken;
- findings on material facts;
- evidence or other material on which those findings are based;
- reasons for the decision. Reasons for the decision should include an explanation as to why the findings or conclusions were reached, with reference to evidence on which the findings and conclusions were based; and
- details of rights of review.
A statement of reasons should be clear and expressed in terms that are easily understood by the person impacted by the decision. Although templates and briefs may be of assistance to decision-makers in preparing a statement of reasons, caution must be taken as decision-makers must show an “active intellectual engagement” with the relevant considerations: per Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140. As such, a statement of reasons should identify the decision-maker’s conclusions and demonstrate the decision-maker’s reasoning process, clearly linking the material facts with the conclusions drawn from those facts.
7. Keep parties informed, advise of the outcome and provide reasons
Decision-makers should inform the affected person of the outcome and provide reasons for the decision reached. Decision-makers must communicate decisions within the timeframe and in the manner required under the legislation. If there is no timeframe specified for making the decision and the decision-making process becomes protracted, it is good practice to keep the affected person informed and up to date.
This article was written by Kristina Mihalic, Partner, and Ali Gorman Solicitor.
