December 2018

Good decision making - a delicate balancing act

We all like to think we make good decisions, especially in our areas of expertise or specialty. But on what basis?

Sometimes it’s simply a gut feeling. “I’ve been doing this for a long time, I know my stuff, and I know what makes sense in this situation.”

Government decision making, however, requires a degree of rigour, coupled with subtlety, not seen in many other areas. Above all, it calls for the balancing of public and private interest, generally in the context of a legal framework.

Good government decision makers are skilled at balancing four distinct requirements:

  • Legal demands or requirements

  • Objectives of government policy

  • Public expectations and those created by the government authority

  • Financial and economic restrictions.

But the matter doesn’t end there. No matter how sound the government decision, there will almost always be someone who believes it impacts them unfavourably.

From a legal standpoint, then, a good government decision is one that, if challenged, is justifiable within the legal context in which it is made.

What is meant by “legal context”? Put simply, it is the precise wording of the governing rule or legislation that bears on the decision. Government organisations are obliged to apply the law, not be guided by “perception”.

Where this doesn’t happen, decisions are more likely to be challenged, with the tribunal or court then applying the very law that should have been applied in the first place.

Moreover, when making a decision, it is important to clearly state the relevant law and the rationale for its application in this case.

Twelve years ago, Justice Branson in the Federal Court in Australian Postal Corporation v Barry (2006) 44 AAR 186 at 190 stated this principle elegantly:

“… it is a statutory discipline for every statutory decision-maker to refer to the terms of the relevant statutory provisions and to identify each element of the statutory cause of action. Had the Tribunal in this case set out or paraphrased in its reasons for decision the terms of sections… it is unlikely that it would have overlooked their critical elements.”

Operating from this overriding principle will do much to ensure sound decision making. But there are still ways to go wrong. They include:

  • Assuming that the wrong provisions apply

  • Proceeding on the wrong interpretation of the details of the correct provisions

  • Failing to base the decision on the terms of the enabling power.

The last point bears expanding. Many laws are written for the purpose of enabling authorities to make decisions appropriate to their role. Administrative decision makers are entitled to take policy into account when making decisions.

That doesn’t constitute a blank cheque by any means, but it does mean that public interest must be given due consideration.

Fair's fair - even if the outcome may not be

At times, that may mean a decision is made that is, or seems to be, unfair to specific individuals or groups.

For such a decision to withstand scrutiny, the key is not whether it disadvantages specific people (ie. the decision itself is fair), but whether the process by which it was arrived at was fair.

In other words, was the decision made in accordance with the relevant statute and the requirements of natural justice?

Natural justice demands that those affected by a decision have the opportunity to express their views, and that the decision maker (whether an individual or an entity) is impartial and not subject to any conflict of interest.

In practice, this means – among other things – that members of the public should be notified of a proposed decision, provided or given sufficient access to information that would allow them to effectively respond and present arguments, and that this takes place with due consideration of the legislative framework, subject matter and potential consequences of the decision being made.

Regarding impartiality, it is not sufficient for the decision to be unbiased – an apparent bias that could lead a fair-minded person to suspect the decision maker is not impartial may leave a decision open to challenge.

Operating from a clear understanding of these legal principles, coupled with a sound grasp of the material facts in each case (including those that must be inferred), will leave Councils on solid ground when making decisions.


Author: Norman Donato