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Although the ADF and APS frameworks are different, they are both based on administrative law. To ensure you have met the administrative law requirements for good decision-making, use the following ten steps to guide you. § These steps are based on the reasons for review of administrative decisions set out in the Administrative Decisions (Judicial Review) Act 1977. § The steps form a useful checklist to ensure your decisions are based on a defensible process. In reviewing pay and conditions decisions it is often the process you have followed to make the decision that will be most carefully examined. By applying these steps your decision will be stronger and more likely to be upheld in any review. |
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The decision must be authorised by the enactment under which it is made. In other words it must be a valid power under legislation such as the Defence Act or the PS Act, or under the DECA. It is essential that you as the delegate/decision-maker understands the nature of the power you are exercising. You may be given a power directly by legislation or the DECA, or the power may be given to you by means of an instrument of delegation or authorisation. This gives you the legal authority to make a decision. |
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When you make a decision: § First read the relevant provision that contains the power. § Check that you hold a power that permits you to make that decision. Your position, or class of positions, must be listed in an instrument of delegation or authorisation. You must formally occupy that position on either a permanent or temporary basis. § Check whether the person who gave you the power has put limits or conditions on the way you can use it.
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You have the power to refuse as well as give an entitlement. You must have reasonable grounds to support your decision. Note: If the person who holds a delegation or authorisation is not available, another person can make the decision, but only if they have been given the same power. It is important to remember that unless the rule that gives you a power clearly permits you to give it to another person, you cannot give the power to another person. |
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Your decision must be made in a way that complies with the legislative framework of rules and any principles relating to the matter being considered. It must be a valid power under legislation (eg the Defence Act, the PS Act, the WR Act) or the DECA. It must also comply with any direction that is attached to the power to be used.
You must consider the purpose and context of the rule. You should not read the words so narrowly that you defeat the purpose of the rule. You must not ignore another rule that is there to cover that situation. |
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If the rules, principles or directions list factors or criteria that must be taken into account in reaching a decision, you must observe these criteria. When you are making your decision, you may be required to consider government policy. When doing this you must not apply that policy inflexibly and you must take into account rules or directions that list things (often called 'factors' or 'criteria') that are relevant. Administrative guidance and policies that are not listed as criteria under legislation may also be relevant to the decision. You must make your decision having regard to all the merits of the case. If there is an inconsistency between a legal rule and a source of administrative or policy information, the rule must be followed. You should tell the relevant policy areas in Personnel Policy and Employment Conditions Branch in DPE if this happens so that the confusing information can be fixed. |
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As a decision-maker, you must examine all the relevant facts of each individual case on its merits. Do not allow irrelevant facts to influence your decision. § Be careful to ensure the relevance of each part of a case put forward. § You must be certain of the facts. Any key points should be independently confirmed, if necessary. In some cases you may be required to make inquiries to confirm the facts. § You should not be pressured to make your decision by a large quantity of supporting material that may or may not be relevant. Whether the supporting material is relevant is a matter for you to consider and decide. § You must not be swayed by emotive argument that is not supported by relevant facts. § You must not approve a case solely to avoid complaint. |
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When you make a decision, you must remain objective and impartial. This means you must make no preconceived judgements on the merits of a particular application, you must not act in bad faith and you must not be influenced by personal attitudes towards the policy or about a person's status or expertise. § You cannot be forced to decide a particular way, by another person (such as your supervisor or CO). Make your own decision free from influence. § If there is any risk of real bias, or the appearance of bias, either for or against an applicant, then you (as the decision-maker) must refer the case to another decision-maker with the appropriate powers to make the decision.
You must avoid conflicts of interest. Where the decision may confer a personal benefit to you (as decision-maker), or to your family or friends or associates, or where it may look as if there may be bias or a conflict of interest, you must refer the case to another decision-maker with the appropriate powers to make the decision. |
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You must be fair and reasonable and must observe natural justice. Natural justice is sometimes also referred to as 'procedural fairness'. It is a very important principle with rules that must always be followed. § An applicant must have full access to the rule and any criteria on which the decision is to be made, so that they can make their case and respond to any problems. § An employee who is the subject of a decision-making process has the right to be heard before their application is refused. You must not shut your ears to the applicant during the process of deciding the matter. § In disputed matters, you must listen carefully to both sides and give the employee an opportunity to reply to any adverse findings. § You must not be biased, either for or against the applicant. § You must test the evidence provided; there must be sufficient valid evidence to support your decision. |
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Wherever possible take care to protect an applicant’s privacy. The Information Privacy Principles in the Privacy Act 1988 set out standards that you must, by law, follow, regarding these matters. § Collecting, storing and disclosing information about people. § Allowing people access to information that Defence keeps about them. § Allowing people to request changes to this information.
They can be found at Appendix 4. |
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Being consistent does not mean that you are bound to follow a decision that has been made before, sometimes called a 'precedent'. It does mean you should: § Follow policy guidance. § Consider the merits of each case in a similar way so that the process is fair and reasonable for everyone. § Make the fair and correct decision in the particular circumstances of each individual case. |
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It does not mean making the same decision for everyone whatever their circumstances, or making a decision that is so unreasonable that no reasonable person would have made the same decision. |
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Make decisions promptly, as delays may form grounds for review of the decision or the decision-making process. (However, it is also important that you seek advice before you make a decision, rather than make an incorrect or inappropriate decision in haste with unwarranted consequences. It is good practice to advise an applicant of any unexpected delay in the process.) |
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There are good reasons to keep records of your decision. New information might come to light that may make you consider revisiting a decision (see Section 9). The applicant might later seek a review of your decision (see Section 10). Without records you will probably only remember some of the issues that led you to make your decision. You might have to make many decisions in the course of your job, and record keeping might seem like an additional burden. It is sensible to take a risk management approach, and to make sure that some decisions have better records than others. This table shows what factors should trigger you into keeping more thorough records. |
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Fewer records |
More records |
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The benefit is small. |
The benefit is large. |
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The decision just requires the verification of facts. |
The decision is a discretionary decision. |
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The matter is a common one. |
The matter is unusual. |
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The case is straightforward, requiring simple judgement. |
The case is complex, requiring significant discretion or judgement. |
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The applicant clearly does not meet the facts. |
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There are no review mechanisms for your decision. |
The applicant may seek a review of your decision. |
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You have assessed the risk of a review occurring, and you believe it is low. |
You have assessed the risk of a review occurring, and you believe it is possible. |
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The decision involves matters on which the applicant should have the opportunity for a hearing. |
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There is a third party with an interest in the matter. |
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Your decision is in the applicant's favour. |
Your decision is to refuse the application. |
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Example 1: A new member has applied for recognition of prior service for long service leave. Four years ago the member was discharged from the ADF on medical grounds, after five years of service. You have the power to approve recognition of this member's prior service but only if you are satisfied the member returned to the ADF within a year of recovery. You think the member has not made their case that they recovered less than a year ago. You have evidence to suggest that the member was fit at least two years ago. After discussions with the member, and after looking at the medical evidence the member has provided, you have decided that you will not approve the application. You know the member will not be happy. You decide to keep very thorough records of your decision-making process. |
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Example 2: An employee applies for a week of annual leave. The week that is chosen is going to be hectic, but the employee is just as happy to take the week before and to be there for the busy week. You approve the amended application. You keep minimal records of your decision-making process. |
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Use the one page Checklist in Appendix 1 to ensure you have followed these steps each time you make a decision. |