Decision-makers have all sorts of influences and influencers. Even when the power to make a decision comes from legislation, it can be confusing for a decision-maker. It can seem as though they have to follow instructions from everywhere: policies, procedures, peer group pressure, political goals, or public opinion.
Questions may float around in the decision-maker’s head. Should I make this decision in accordance with a policy? Should I do what my manager tells me to do? How will it look if I make this decision?
These kinds of influences and instructions, whether emanating from a document or a person, can cause problems. Following such instructions can take the decision-maker away from their statutory role, and lead to unlawfulness.
What unlawfulness can arise from following an instruction?
Administrative decisions made in compliance with an instruction might be, in a sense, made ‘by’ the instruction. In other words, the decision-maker is not really making the decision. For that reason, the courts will conclude that the decision-maker ‘acted under instruction’, or ‘acted under dictation’. This is a problem where parliament had wanted the decision-maker to ‘make up their own mind’. Instead of following parliament’s intention, the decision-maker allows the policy, or the superior officer, to effectively make the decision.
Maritime officers are different
Of course, there are cases where parliament does not intend the decision-maker to be too independent. For example, a maritime officer who may detain someone does not need to be totally independent in their decision-making.
Here is a case in point. Section 72(4) of the Maritime Powers Act 2013 (Cth) provides that ‘A maritime officer may detain (a) person and take the person… to a place outside… Australia’.
The High Court in CPCF v Minister for Immigration and Border Protection found that a maritime officer, who needs to consider the weather, fuel and other resources; may follow a direction from a superior without offending against the ‘acting under dictation’ rule, because parliament did not intend them to operate in accordance only with a personal discretion.
One can imagine that the maritime officer, facing all sorts of immediate and high-risk practical considerations; is not in the same position as an officer on land, in front of a computer, deciding whether to grant a licence or not.
Your average administrative decision-maker needs independence
Most decision-makers in government, or acting under a statutory power, do need to think somewhat independently about their decision-making role.
While it is important for employees in government agencies to comply with directions of their employer – including in the realm of policy – they need to be careful if they are exercising statutory decision-making power. Parliament generally intends that administrative decision-makers act somewhat independently. In such cases, the decision-making power has come from parliament. It has not come from a manager or employing agency. How can the manager or employer possibly trump parliament in that context?
Why, then, do people love to follow instruction so much, even when it runs counter to their statutory mandate? Perhaps people ‘act under dictation’ because they lack a fundamental understanding of what their powers are, and where they have come from.
It is one thing to take a policy into account, or to consider the views of one’s superiors. It is another thing entirely to simply adopt a policy or instruction as your decision.
How common is this ‘acting under dictation’ problem?
How common is it for administrators to follow the instruction of a policy or a superior, rather than making up their own mind? It is hard to tell, based on court cases alone.
But the problem may be quite widespread.
I have heard FOI officers say that they ‘cannot’ release certain documents, even though those documents ought to be released. And I know of several examples of ‘groupthink’ in decision-making – where a team of people, including managers, decides what to do and instructs the ‘delegate’ as to the approved outcome. (Interestingly, this kind of thing seems to arise from the work of risk management consultants, despite the fact that such groupthink increases the risk of unlawful decision-making!)
A recent Australian example
The NSW Ombudsman in 2020 investigated allegations of ‘following instructions’ in the realm of statutory decision-making. The resulting report is called: Investigation into actions taken by SafeWork NSW Inspectors in relation to Blue Mountains City Council workplaces. The report identifies a number of problems with respect to the work of several SafeWork NSW inspectors.
For example, the Ombudsman found that various prohibition and improvement notices were issued unlawfully by inspectors. One Inspector did not have a reasonable belief that the notices were warranted. Rather, the inspector issued them because he was told to to issue them by his Director. However, the Act required the existence of such a belief as a precondition to the exercise of the power. Therefore, the issue of the notice was unlawful.
What should decision-makers do?
Decision-makers who operate under a statutory framework need to be aware of the policy and instructions traps that lie ahead of them. They need to develop a stronger sense of their statutory role.
They need to constantly refer back to the source of their decision-making powers: the legislation. If they practise following, and using, the words of the legislation more closely; they are less likely to allow a person or policy to replace their decision-making powers.
Further reading: Commonwealth of Australia v Okwume [2018] FCAFC 69; Nashua Australia Pty Ltd v Channon (1981) 58 FLR 325; CPFC v Minister for Immigration and Border Protection [2015] HCA 1.