Administrative Review Council releases best-practice guides on decision-making

By Michael Palfrey.

Key Points:
The ARC guides provide an accessible and succinct guide to key decision-making principles, although their greatest impact will come with area-specific expansion.

The Administrative Review Council ("ARC") has just released a series of administrative "Best Practice Guides" designed to aid decision-makers in their task, and to promote consistent decision-making practices across Government. The principles that inform the series apply equally to Commonwealth, State and Territory decision-makers.

The series covers five key topics:

• lawfulness, or legal requirements of decision-making
• natural justice
• evidence, facts and findings in decisions
• reasons; and
• accountability.

Lawfulness

Guide one looks at the bases and requirements of legal decision-making.

This includes:

• the need to identify the source of the power being exercised
• ensuring legal procedures are followed
• the need for rationality within decision-making; and
• awareness of accountability mechanisms for decision-makers.

It also addresses the tricky topic of delegations in some depth, along with the roles played by discretion, policy, procedures, and human rights.

Natural justice

In addressing the need to accord procedural justice, the ARC guide primarily deals with two main rules: the obligation to avoid conflicts of interest and the appearance of conflicts (the bias rule); and the wide-ranging obligation to notify an affected person of any adverse information being considered in a decision, and to allow that person a chance to respond to that information
(the hearing rule).

Evidence, facts, and findings

The third ARC guide explores the need to base decisions made upon clear facts, particularly the importance of not determining questions on the basis of unverifiable or manifestly unreasonable facts. It also provides guidance on the collection of evidence, the assessment of evidence, and the conclusions which may be drawn.

Reasons

This guide notes the benefits of providing reasons for decisions: they explain decisions; ensure decisions are properly informed; they motivate decision-makers to be more careful; and help to ensure the correct identification of legal principles. The guide also explores the basis for requests for reasons, the Acts which apply, and special considerations which can arise in the process of giving reasons.

Accountability

The last guide in the series looks to the accountability mechanisms to which decision-makers are subject, namely, review processes. As the guide notes, such mechanisms help ensure decisions are correct, improve decision-making, create transparency, and help engender public confidence in governmental processes. The guide examines internal vs. external review, merits vs. judicial review, the ombudsman, the possibility for altering decisions, and the implications of review for future cases.

Uses and implications of the guides

This series of best practice guides is intended to provide to all decision-makers in Government a general tool, or roadmap, for how to approach decision-making. They address the requirements of decision-making in a very general way, but are designed to be used as bases for further department and area specific developments. Indeed, the Department of Immigration and Citizenship worked closely with the ARC in the development of the guides, and has prepared a tailored set of guides for itself.

The guides are important reading for all governmental decision-makers. They should be seen as an introductory manual, and their greatest utility will be as a foundation for further guidance and expansion specific to the many and varied areas in which Government decision-makers are involved.