CHAPTER 7 | problem areas in government decision making

Schemes established by executive action

Many government schemes and programs are established by executive rather than legislative action. An example given in the 'Looking at the agencies' chapter is the GEERS scheme administered by the Department of Employment and Workplace Relations, for payment of redundancy benefits. There are advantages to an agency in schemes of this nature, principally in the flexibility for the agency in establishing, altering, redefining and dismantling the scheme as circumstances require.

Yet that flexibility poses risks to the enjoyment of rights by members of the public. We have received a small number of complaints dealing with a few different executive schemes, and perceive some areas of common concern. One is that the criteria of entitlement are not necessarily as clear or ascertainable in an executive-based scheme as in a legislation-based scheme. This is particularly a problem if the internal agency documents that constitute the scheme are in a state of flux, or different decision makers are applying different versions.

A related problem that we dealt with, involving an executive program for disaster assistance, was that a restructure of the program did not deal with the transitional problem of applications that had been lodged but not determined at the time the program was restructured. A complainant to our office had his application rejected for failure to meet the new criteria. We pointed out to the agency that if the scheme had been established by legislative action it was unlikely that Parliament would have agreed to a restructure that did not make favourable allowance for applications lodged but not determined. The agency agreed and approved the grant.

Another difficulty with schemes based in executive action is that there is usually a reduced range of review and appeal rights. For example, the appeal jurisdiction of the Administrative Appeals Tribunal is conferred by legislation only. The right to complain to the Ombudsman is ordinarily the only external review option. We point out to agencies that it is important when establishing executive schemes to build an internal review framework into the schemes.

'Another difficulty with schemes based in executive action is that there is usually a reduced range of review and appeal rights.'