Covid 19 has brought unprecedented times to Australia and the world. Is this sometimes an excuse for lack of transparency by government? What does our administrative law lens tell us?
Sometimes the community gets more passionate about administrative decision making than other times.
If that decision making appears to have led to illness and death, the community becomes more interested. Like now. We have a Hotel Quarantine Inquiry in Victoria, because the view has been taken that bad decisions led to many more Covid cases in Victoria than should have happened.
I said in my last post that administrators should be transparent about their decision making. And they should also be transparent about who the decision makers are. It is better for everyone. More transparency in my view maximises the chances that administrators will make sure that their actions are lawful. They will know that they are going to be called to account for any decision they make, because their name will be on the decision, and the community will be told who they are.
As I sent my previous “Covid” post, Victorian Premier Daniel Andrews was being questioned in the Covid 19 hotel quarantine inquiry about who made any decision regarding the hiring of security guards for people in hotel quarantine in May. This inquiry is important because failures in this quarantine process have been found to have led to almost all of the Covid cases in Victoria after that time. It’s been called a “second wave”.
The Premier agreed in sworn testimony on Friday 25 September 2020 that it looked as though “collective decision making” – where no decision maker is identified and where a group somehow forms a view together – had occurred. He didn’t agree with it. He said “My understanding of collective decision making does not remove accountability”. Jenny Mikakos, former Health Minister, has since resigned, even though she did not make the key decision or decisions regarding management of the Hotel Quarantine.
It’s all very well to put our collective sins onto a scapegoat, but what are the fundamental problems here? While scapegoats are being identified, nobody has come forward to claim key decisions as their own.
Individuals in government make administrative decisions.
When I run training seminars for government decision makers, I always emphasise that administrative decision making – particularly where it affects a person or two – is an individualistic activity in our democratic system.
We have Acts of Parliament which give powers (statutory powers) to individuals. Those individuals might delegate those powers to other individuals. But it is an individual who gets those powers – not a “team” or a “unit”. If the Act says an individual can make a decision to intrude on the rights of a citizen, or to take away an entitlement, or other things of this nature; then generally speaking it is only a named individual who can make those decision.
What we have is a terrific system of law that requires decision makers to “make up their own mind”, to exercise their own individual judgment, and to be accountable for their decisions. Accountability means that those decision makers might be challenged by the citizen. It’s part of our democratic rule of law.
Group think tanks are not accountable and can be unlawful.
Collective decision making by some kind of ESP process, or series of meetings and emails, without identification of a decision maker, or of a date on which a decision was made, is sometimes adopted in government departments. I get the impression that it is seen as a good thing by some consultants who have some odd view about “risk”. They seem to think that group decision making is risk averse. If everybody “agrees”, then we will avoid the risk of an individual “getting it wrong”.
Group decision making like this isn’t risk averse. It’s risky. Particularly if you are restricting the rights of citizens. And especially if you are exercising powers under a statute. It’s risky because decisions made under a statute are often required to be made by one individual. Parliament determined that this was the way to do it when they passed the statute.
A “risk” analyst should be taking into account the risk of making unlawful decisions which are contrary to the statutory regime.
But often they don’t.
Group decision making is also risky because it doesn’t allow the community to identify when a decision is made, who is accountable for it, and how it could be challenged, or how it could have been avoided.
It’s risky because, in the end, a collective “decision” or forming of a view, with no documentation evidencing it, does not allow for monitoring of that position, or testing of it against either rule of law or the risk of certain outcomes.
Scapegoating someone isn’t enough to change the system.
In government, people should be very careful about the group think tank approach. They should get training in administrative law rather than relying on consultants who don’t know about the law, and who have some kind of limited view of “risk”.
In the current hotel quarantine inquiry, one or more scapegoats are being sent out into the wilderness. Job done.
But what about the faulty decision making processes adopted within government – the ones that seem to be so favoured and so entrenched?
What about the cultural norms regarding so called “risk averse” group think tanks – which are so risky?
Get some admin law training!
If you think your organisation needs a cultural shift – something to edge it towards lawful and transparent decision making, and away from collective avoidance of accountability and risk – they can certainly get some administrative law training. We’ll be happy to help.
Let’s not be afraid of being accountable, it will make all our lives better.
If you need to know more about administrative law sooner rather than later, you can purchase access to our videos and do our quizzes online. Or sign up to our next online course coming up soon. There are a couple in November.