Corruption Matters - June 2020 | Issue 55
Using discretionary decision-making powers in a time of crisis
Between the bushfires and COVID-19 restrictions, this year has felt as though we’ve lurched from one crisis to the next. For many of us who work in the public sector, the decisions we make during a crisis have the ability to make a positive impact on our community when they need us the most.
This can be fraught with risk; with some people focusing only on outcomes, without ensuring that they are complying with their legal obligations and internal decision-making policies. This risk is heightened, given many authorities have conferred wide discretionary powers to their staff, to allow them to respond effectively to the challenges this year has brought.
Many of the complaints received by the Ombudsman (and indeed many investigations) involve conduct of a person where the decisions they have made involve an element of discretion. This is not surprising, given exercising discretion requires balancing a range of factors, making it an inherently complex area. Included below are some basic principles to assist you when making a discretionary decision.
Making a discretionary decision
Before making any decision, ask yourself two questions:
- can I make this decision?
- should I make this decision?
For public sector decision-making, legislation generally provides the lawful authority for action to be taken and for decisions to be made. Discretionary decision-making power may also be vested with decision-makers through an internal delegations instrument.
Decision-makers need to understand the limits of their delegations, and be accountable for their decisions.
Legislation sometimes compels decision-makers to take a particular course of action. However, unless the action is expressed as something the decision-maker “must” do, the decision-maker is generally given a discretionary power to deal with the matter, and has a choice to make. The use of the word “may”, in particular, indicates a discretion to do (or not do) the relevant action.
In our experience, too often there is a failure to recognise the existence of a discretion – just because you can do something, doesn’t mean you should.
Before you can decide whether you should make the decision, you should identify any factors either in favour or against making the decision, and weigh them based on how important they are. Contemporaneous records should be kept documenting how you have arrived at the decision – the easiest recommendation the Ombudsman can make in an investigation is where documents should exist – and yet they don’t.
Decision-makers must use their discretionary powers in good faith, and for a proper, intended and authorised purpose. Decision-makers must not act outside of their powers, even if it seems like the right thing to do.
With much of the community experiencing hardship at present, there may be a temptation to ignore internal policies in the interests of making decisions quickly. Taking such an approach has a range of consequences for your organisation, as well as you personally. This includes potentially rendering the decision unlawful (or alternatively resulting in a substantiated complaint to the Ombudsman!).
Now is more important than ever for decision-makers to ensure they are acting within the boundaries of the law and internal policies, that they are weighing up relevant factors and keeping good records supporting their work.
More information: NSW Ombudsman
