Hotel Quarantine Covid Decision Making

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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?

administrative law training
Group Think Tank

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 Meeting
Group Meeting

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.

admin law
Group Decision

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.

Unprecedented Unlawfulness in Covid Times

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administrative law
Architecture with Mask

Covid 19 has brought unprecedented times to Australia and the world.  Is this sometimes an excuse for lack of transparency or unlawful action by government?  What does our administrative law lens tell us?

Administrative law compliance is fundamental for government administrators, and private operators in regulatory environments.

I always say this.  That’s what our training and video series is about.
I also think that administrators should be transparent about the legal requirements they impose – so that the community can understand what they can and can’t do, and the legal basis for it.

That will reduce the chance of manipulation and fear. It will also maximise the chances that administrators will make sure that their actions are lawful.

admin law au
United Nations Covid-19 Swab Test Image

Like most of us, I have been quite shocked at what has happened this year since Covid 19 entered the world.  I have been particularly surprised at the lack of understanding of lawfulness, and how to communicate it, by those in government or those responsible for communicating government messages.

It’s amazing what fear and rhetoric can do.  No matter how little evidence or legal framework underpins such fear or rhetoric.

Get ready for complaints, because once the Covid panic is over (which will surely happen), and we reflect, there will likely be a few legal cases challenging the “unprecedented” unlawful decisions made in these “unprecedented” times.

As I said to an administrator the other day – yes, these are unprecedented times, but we still have to follow the law!

United Nations Covid Response – Truth v Rumors

I will have a few more things to say about admin law and Covid in the coming weeks.  For this email, I say this.

Be careful about oversimplification. 
Maybe this message applies to “Comms” people in government, or politicians, or bureaucrats sending people letters.  But it is also a useful message for those receiving messages from those in power.  Maybe the messages that you are reading are oversimplified.

Oversimplification can be extremely misleading.  It can cause anxiety unnecessarily, or it can make people think that the law requires them to do certain things, when it doesn’t (which might be a desirable outcome for some, but I doubt is in the public interest).

“Stay at home” story
An obvious example of Covid messaging is found on our freeways.

On the freeway in Melbourne are signs for travellers.  Some of them are so short that they are incorrect.  For example, those saying “You must stay home” are not true.  It is not true that every person driving under that sign must stay home.

A better sign which you may have seen (also a short one), says “Avoid unnecessary travel”.  It’s not much longer, but much more accurate.

The first sign prompts anxiety “I’m not at home. I’m in a car on the freeway. I thought I was complying with the law. What am I missing. Oh no!”

The second sign prompts a reminder. “Is this trip necessary? Oh yes, it is necessary because I need to buy that thing. (Or visit that sick person, or…)”

If you read the Victorian Directions applying to the Stage 4 lockdown, you will find pages of detail as to when you can leave home, and it changes often.  That detail just can’t be summarised into “You must stay at home” full stop.

If people in government are responsible for sending messages to the community regarding what is the law, they should do their best to make those messages correct.  Incorrect messages like “You must stay home” can serve to feed anxiety rather than helpfully reminding the community of their obligations.

For me, such simplification has caused quite a bit of trouble in our attempt to empty my parents’ house.  My parents have entered Aged Care (more about that in later posts), and have sold their house.

People are too scared to help with emptying the house, or taking any of the furniture, because they are afraid they will be breaking the law.  Opshops are closed, and even the local tip is closed, so emptying the house (which is required by law) has proved particularly difficult. 

The freeway signs saying “you must stay at home” don’t help.

Clear messaging is better.

Communicators of government messages in these unprecedented times should be clear and accurate.  Yes, Covid makes many of us anxious, but there is no need to add unnecessary anxiety through incorrect messaging.  But to be clear and accurate, communicators need to know more about administrative law.  They need to know the difference between a legal requirement, a recommendation, and – even – making things up.

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.

University students, misconduct and admin law

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Y v University of Queensland [2019] QSC 282 is the latest case in the vexed world of university student misconduct, disciplinary proceedings, and criminal law.

What does Y’s case teach us?

Before we talk about the case, what “take aways” did another student (who is doing a summer placement with me) get out of reading it? It was interesting to hear her observations. She thinks:

  • the case highlights the importance of understanding your organisation’s own policy and procedures;
  • clarity in those procedures is so, so important;
  • universities (and employers) need to be consistent when disciplining students (or employees);
  • as a decision maker, you need to think about not just what you can do, but what you cannot do;
  • be aware of the duty of care owed to students and staff, but don’t forget the university’s reputation either.

What’s this case about?

Y, a student, obtained judicial review of a decision of the University of Queensland and the Disciplinary Board of the University of Queensland.

The Board had sent a notice of allegations to the student, and was ready to hear and decide those allegations. They were allegations of sexual assault, and the hearing was to be under the University’s Student Integrity and Misconduct Policy.

The Supreme Court restrained the Board from hearing the allegatinos. The Court found that the Board did not have jurisdiction.

The allegations were at least partly found to be allegations of criminal offences.

They were not just allegations of breaches of a sexual misconduct policy.

How does this case affect your University or government employer?

It’s common for criminal acts, or allegedly criminal acts, to be part of a disciplinary investigation. Or part of the landscape of a disciplinary investigation. This can happen in the public service, or in a university, or anywhere, really.

You are an employer, or university, or some sort of regulator. But you are not the police, and you can’t lay criminal charges. How are you supposed to work out what to do?

I will add to this article in the coming weeks. But what do you think?

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