CHAPTER
6 | how the Ombudsman helped people
Providing Reasons
It is a fundamental principle of good public administration that reasons
for an administrative decision should be provided to anyone aggrieved
by the decision. Members of the public are more likely to have confidence
in how and why government decisions are made if a satisfactory written
explanation is provided. In a publication of the Administrative Review
Council, Commentary on the Practical Guidelines for Preparing Statements
of Reasons (2002), the Council set out fundamental interests that are
advanced by reasoned decision making, among them, to improve the quality
of decision making and to institute transparency in decision making.
Providing clear and concise reasons for decisions is an essential part
of the system of governmental accountability.
Many public-sector bodies have made an agency commitment to reasoned
decision making, to supplement whatever legal obligations may apply.
One such example is the Taxpayers' Charter, which provides an undertaking
that the ATO will provide a clear explanation of decisions except in
very limited circumstances (for example, if explaining a decision would
involve a breach of another person's privacy). This ATO commitment reflects
best practice that is now widely adopted by other government agencies.
The Ombudsman Act reflects the same theme. Section 15(1)(c)(ii) of
the Act provides that the Ombudsman can form an opinion that a person
should have been furnished with reasons for a decision about exercising,
or refusing to exercise, a discretionary power in a particular matter.
Many of the complaints received by the Ombudsman's office each year
relate to instances where there was scope for better explanation of decisions
by agencies, as illustrated in the Providing a statement of reasons and
Declined Act of Grace payment case studies. In fact, the most
common remedy for complaints investigated in 2003–04 was the provision
of a
detailed explanation by an agency of its decision or action.
CASE STUDY
|
providing a statement of reasons
|
Ms C complained about a refusal
by the Tax Agents' Board of New South Wales to provide reasons
for its decision not to pursue a complaint made to it about the
conduct of a tax agent.
After investigation, the Ombudsman accepted that the Board was
not in breach of any legal obligation in declining to provide a
statement of reasons. However, on other grounds the Ombudsman disagreed
with the Board's approach of not providing reasons. It was pointed
out to the Board that it is now widely accepted in the public sector
that a decision maker should at least attempt to give an explanation
that will satisfy a complainant.
While accepting that the Board has very limited resources and
works under considerable time and workload pressure, the Ombudsman
considered that it was incumbent on the Board to recognise the
importance of reasoned decision making in its dealings with members
of the public and to be prepared to provide a sensible explanation
of its decision-making process on request. What will suffice as
an explanation may vary markedly according to the circumstances
of the particular case, including the nature of the decision being
made.
In the course of the investigation, the Board prepared a draft
letter to the complainant that, in the Ombudsman's view, contained
adequate reasons. The Board confirmed that the letter had been
sent and that it has changed its policy. The Board now provides
all complainants with a general explanation of its processes and,
where applicable, specifies reasons on request. |
CASE STUDY
|
declined act of grace payment
|
Mr R made a claim for an Act
of Grace payment against the Commonwealth Director of Public Prosecutions
(DPP). The claim was rejected by the Parliamentary Secretary to
the Minister for Finance, who set out his reasons in a letter addressed
to the Attorney-General as the Minister responsible for the DPP.
The DPP declined to provide a copy of the Parliamentary Secretary's
reasons to Mr R, considering that it was not their letter to release.
The Ombudsman took the matter up with the Department of Finance
and Administration, pointing out that other agencies provided Act
of Grace claimants with the reasons for rejection of an application.
Often this was done by attaching a copy of the Parliamentary Secretary's
reasons to the letter sent by the department or agency to the applicant.
The Department confirmed that reasons should be provided irrespective
of whether the decision not to approve a payment was conveyed via
ministerial correspondence. The Finance Secretary also advised
that the Department would issue a general circular to departments
and agencies advising that reasons for Act of Grace payments should
be provided to claimants. Applying that practice, the DPP provided
the reasons to Mr R in this case. |
|
Chapter
6 | How the Ombudsman helped people
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