CHAPTER 9Problem areas in government decision making

Unhelpful legalism

Australian Government administration is bound by a large and growing volume of complex legislation. Lawyers and legal considerations will therefore have a role in resolving many disputed issues. Given that all administrators have a duty to act lawfully, they will often need legal guidance.

On the other hand, there is a growing risk that in the complex legal environment of government, legal approaches will overshadow the important role of administrative discretion and judgment in finding a practical resolution to problems. Although lawyers can make a positive contribution to administrative decision making, this does not mean that the more lawyers involved, the better the decision-making process.

The Ombudsman's office has often had cause to criticise unnecessary or unhelpful legalism by agencies. When agency lawyers become closely involved in deciding how to respond to the Ombudsman's office, there is a greater chance that jurisdictional and technical issues will be raised. Such issues include the scope of the Ombudsman's jurisdiction to investigate, the relevance of the Privacy Act 1988 to disclosure of information to the Ombudsman's office, the legal obstacles that would confront the agency in varying the decision about which a complaint has been made, or the broader ramifications for the agency of varying that decision. Those issues all have a role to play, but when they become the focus of discussion between the Ombudsman's office and an agency, more time can be spent discussing how to address a complaint than the complaint itself. The attention given to finer points and procedural issues can be at the expense of the whole picture and a discussion of outcomes and solutions.

'The Ombudsman's office has often had cause to criticise unnecessary or unhelpful legalism by agencies.'

There is a danger of a trend towards unhelpful legalism. There has been a steady increase in the number of lawyers in and outside government; all aspects of government are regulated to a greater extent by laws of increasing complexity; and legal considerations are intertwined with other social trends, such as an emphasis on risk management and human rights protection.

It is not easy to reduce the emphasis that agencies (and society generally) put on legal solutions and approaches. In a system based on the rule of law, there is no alternative to acknowledging and dealing with relevant legal issues raised in complaints or by agencies.

Nevertheless, our experience is that there is much to be gained by a readiness to stand back from any problem and to put legal issues to one side while discussion proceeds on other aspects of the problem. Sometimes, for example, a person's complaint about the correctness of a decision might in fact stem from some other dissatisfaction with an agency. Or there may be an acceptable way of working around the problem, or finding a remedy that will satisfy the complainant (such as an apology, a conciliation meeting, or payment of administrative compensation).

We have also found that some agencies are more likely than others to emphasise legal issues and limitations. Conversely, some agencies have been prepared to change their style of response to the Ombudsman's office when we have been critical of a trend towards legalism in the agency. This experience suggests that there is scope for agencies to adjust the emphasis they put on legal considerations in deciding how to resolve problems encountered by members of the public.

Similar concerns have at times been expressed by the Ombudsman's office to lawyers who have complained, either personally or on behalf of clients. Sometimes we find that lawyers' advocacy of complaints can be unduly strident or too focused on legal niceties. This can impede rather than assist the sensible and effective resolution of a complaint.