CHAPTER 7 | problem areas in government decision making

Dealing with the exceptional

A purpose of legislation is to lay down common rules that govern access to or termination of government benefits and concessions. The common rule will usually deal adequately with the generality of situations to which it applies, but there can be unexpected cases where an exception to the rule is required.

Complaints to the Ombudsman are more likely to deal with the exceptional case, or with the alleged failure of an agency to permit an exception to be made to the common rule in a particular case. Our experience in handling complaints points to two matters of general principle. The first is that it is important for legislation to anticipate the exception. This can be done in different ways, notably by a 'hardship' provision or a 'safety net discretion' in the legislation. Safety net provisions are those that allow the decision maker the ability to correct anomalies or unintended consequences.

We encounter instances in which legislation that is increasingly specific and complex in format does not contain provisions of this kind. In these instances, an agency may be unable to respond adequately to an acknowledged case of hardship or unforeseen difficulty.

'Safety net provisions are those that allow the decision maker the ability to correct anomalies or unintended consequences.'

A second general principle is that legislative provisions accommodating the exceptional or the unforeseen should be administered by an agency in a manner suiting that objective. While agencies are understandably alert to the danger that an exception can expand and overtake the common rule, it is equally necessary for agencies to be flexible and open-minded in accepting that exceptional situations should be responded to when they arise.

The following examples illustrate in different ways how exceptional problems can arise or may need to be dealt with.

The first example is from the migration legislation, which has a highly specific set of rules to govern eligibility for and renewal of visas. In circumstances encountered by the Ombudsman's office, an onshore applicant for renewal of a visa may be ineligible because of circumstances beyond their control. A common reason is that the time limit for applying for or seeking renewal of the visa has expired during the period that the person was awaiting a decision in an appeal case. In limited circumstances, the Minister has a personal and non-reviewable power under the legislation to grant a visa to a person who otherwise does not qualify. However, a familiar scenario encountered by our office is that a person may have no practical option other than to leave the country to lodge a fresh application for a visa.

The second example comes from legislation governing eligibility for social service benefits. The legislation contains a formula by which the existing assets of a person can be relevant in deciding their eligibility or ineligibility for a benefit. An asset can be disregarded on hardship grounds spelled out in the legislation. In some cases brought to the office, we have been critical of decision makers for taking an unduly narrow stance in applying the hardship provisions. While acknowledging that subjective judgment necessarily has a part to play in applying hardship provisions, we have noted on occasions that merit review tribunals have similarly been critical of decision makers for the same reason.

The third example illustrates the way that legislation is read and applied will sometimes influence whether exceptional difficulties can be taken into account. In one instance about which complaints were received, a person's eligibility for a benefit could depend on the 'base year' they had nominated. The agency initially declined to allow any subsequent alteration to the base year, claiming that it had no discretion under the legislation to allow alteration or correction of mistakes. The agency relented when we pointed out that other details given by the person in their application indicated that the year had been incorrectly recorded. In effect, viewing the application as a whole, a correction should be made to validate the intent of the applicant.

The same contention has been accepted by an agency in another situation, where money paid by a person and to be credited to their account in a particular year had not been passed on by an intermediary (their employer) until a later year. Our point was that it was consistent with and would validate the intent of the legislation to treat the money as having been given to the agency at the time the payee had done all that was required of them.