CHAPTER 7 | problem areas in government decision making

Review of agency decisions

There is now an extensive system for review of decisions made by Australian Government agencies. The review body in some instances is an external tribunal, in others an internal review unit, and in a growing number of instances both an external and an internal review body. Much work has been done in Australia by bodies such as the Administrative Review Council in refining the principles for independent review of agency decisions.

The value of review mechanisms is repeatedly seen by the Ombudsman's office; indeed, we often decline to investigate if a complainant has not first exercised a right of review. On the other hand, we receive complaints each year that point to the need for close scrutiny of the operation and adequacy of review mechanisms. There is no theme consistently emerging, other than the importance of ensuring that review mechanisms are well structured and integrated with other decision making in the agency.

'… we receive complaints each year that point to the need for close scrutiny of the operation and adequacy of review mechanisms.'

The following examples are illustrative of problems seen by the Ombudsman each year.

An example from the migration legislation illustrates the irregular situation that can arise when not all aspects of a decision are reviewable. There are numerous conditions to be satisfied by a person in order to be granted a visa of a particular class. A decision that an applicant fails to meet some of these conditions is appealable to the Migration Review Tribunal or the Refugee Review Tribunal. A decision that an applicant fails to meet some other of the conditions can result in the application being classified as 'invalid'. Though not appealable, an applicant may be able to relodge the application once the deficiency has been remedied.

On the other hand, there can be a negative outcome if, by this time, the applicant is unable to meet some other condition for the visa when making a fresh application. (For example, the applicant has passed a specified age or does not have a recent educational qualification.) Such may not be the case if the decision was appealable to a tribunal, since some features of the decision may be 'preserved' pending resolution of the appeal. (Some decision makers have responded to this problem by informally reconsidering the initial assessment that an application was invalid. While beneficial, this still lacks the quality of independent review, namely, that the right is exercisable by all on defined criteria and is properly recorded.)

We see examples pointing the other way, in which the conferral of rights of review can be disadvantageous in a practical sense. Applicants in the social security stream have the opportunity to seek internal review by an Authorised Review Officer (ARO), and external review by the Social Security Appeals Tribunal and the Administrative Review Tribunal. To facilitate speedy and informal review of decisions, steps have been taken at an executive level for original decision makers to reconsider their own decisions before review by an ARO. We have questioned the practical benefit of this initiative. We found that only a small percentage of decisions were overturned upon reconsideration, and complaints to our office suggest that the additional level of review can cause 'review fatigue' for applicants.

A different issue in relation to review of decisions is that we have detected a disconformity in some areas of decision making (such as debt waiver) between the approaches taken by decision makers and external review tribunals. This is not a new issue; over time, senior agency officers have occasionally and publicly defended their reluctance to give effect to a line of tribunal decisions of which they disapprove. Even so, it is a problem that should not be dismissed lightly. For example, some complaints that we have investigated highlight that in debt waiver cases primary decision makers have sometimes been concentrating too narrowly on the legitimacy of a debt being raised. They have not been dealing with the additional question (taken up by tribunals applying the statutory criteria) of whether there are special circumstances that warrant a discretionary waiver.

An undesirable consequence, when there is a disconformity between the approaches at primary and review levels, is that the outcome for a person can depend unduly on whether or not they seek review. The different levels of decision making and review should operate compatibly as part of a coherent system.

Another perennial issue in relation to the appeal system concerns the approach that should be adopted by an agency when it is faced with conflicting tribunal decisions and legal opinions, and resolution of the disagreement by legislative action or judicial review is still some time away.

This issue arose during the year in relation to the question of whether import approval could be given by the Department of Transport and Regional Services (DOTARS) for vehicles already physically landed in Australia. Several complainants, who had been refused import approval by DOTARS, pointed to their different expectation and to the disconcerting and expensive range of options they faced (re-exporting the vehicle, crushing it, abandoning it, or having it impounded).

Pending resolution of an appeal initiated by DOTARS to resolve the issue, we held lengthy and cooperative discussions with them to explore options for addressing and minimising the problem. Options included facilitating discussion between complainants and DOTARS, expediting the hearing of the appeal, examining payment of compensation, exploring options for legislative change, and developing internal complaint-handling procedures. (The upshot is that the Full Federal Court held that import approval could be granted under existing legislation: Minister for Transport and Regional Services v Marra [2003] FCAFC 294.)