Volume 3 - Defensible decision making

Introduction

The information in this volume provides an overview of defensible regulatory decision making relevant to export functions, and is aimed at providing the authorised officer an understanding of defensible regulatory decision making.

It also aims to provide the knowledge and skills to apply effective defensible regulatory decision making techniques in the workplace as this is fundamental to the role of authorised officers.

Authorised officers conduct regulatory functions, such as inspections, verification and authorisation of export consignments, and make many decisions on a daily basis.

If the incorrect decision is made, it could negatively impact on the international reputation of Australian Quarantine and Inspection Service (AQIS) and may potentially result in legal action by exporters.

Therefore, authorised officers need to understand key legislation relating to defensible regulatory decision making and to apply defensible regulatory decision making techniques within the workplace.

Defensible regulatory decision making is when a person makes ‘the best possible decision that is within legislative parameters and can be justified’.

Principles of Defensible Regulatory Decision Making

As an authorised officer, it is important to understand the principles of effective decision making to ensure that all decisions made can be successfully defended if challenged.

AAO’s must regularly check and refer back to the legislation to maintain knowledge of the legislation and apply correct interpretation.

It is also important that you regularly check the delegations under that legislation and know the limits of any authorisations.

The following principles originate from case law relating to decisions that have been successfully over-ruled. The over-ruling of decisions through judicial review has set a number of precedents for the standard required when making a regulatory decision.

It is very important that the decision maker is able to defend the process used for making a decision to ensure that any possible challenges through judicial review can be defended.

The process used to make an effective defensible regulatory decision should include:

  • Acting within legislative parameters
  • Applying natural justice (procedural fairness) principles
  • Following consistent work practices and procedures
  • Making a decision that would be reached using the ‘reasonable person’ rule
  • Taking into account all considerations relevant to the situation
  • Considering all facts independently
  • Reconsidering the decision if more evidence/information is provided

Each principle is explained and the sequence of decision making depicted in diagram1 below, and supported with examples.

Legislative Parameters

Decisions must be made within legislative parameters. To make a lawful decision:

  • The source of power relevant to the decision must be identified
  • The decision must be made within the limits of the source of power

Source of Power

The source (or origin) of power relevant to the decision must be identified. An authorised officer needs to be clear of decisions they are about to make and if the power for such a decision is based on legislation then they should read the current legislation from ComLaw.

Legislation relevant to export authorised officers includes the:

  • Export Control Act 1982
  • Export Control (Orders) Regulations 1982
  • Export Control (Fees) Orders 2001 (as amended)
  • Export Control (Prescribed Goods – General) Order 2005
  • Export Control (Plants and Plant Products) Orders 2011

The officer needs to know whether the authority to make decision has been delegated to them via the proper legal mechanisms such as delegation and authorisation.

A person who has the decision making power under the legislation can delegate such power to an officer. However, it is up to the officer to confirm that they are covered by an appropriate delegation prior to making the decision.

Decision making power can be conferred by authorisation or appointment into a position such that only those with such appointments can make decisions within that power.

Natural Justice (Procedural Fairness)

The rules of natural justice are principles developed through case law to ensure the fairness of the decision making procedure of courts and administrators (who include authorised officers).

The expression 'natural justice' is used interchangeably with the expression 'duty to act fairly' or 'procedural fairness'.

Broadly speaking, the rules of procedural fairness are the:

  • Hearing rule
  • Bias rule
  • 'No evidence' rule

Hearing Rule

The hearing rule requires that a decision maker give to a person whose interests may be adversely affected by a decision an opportunity to present his or her case.

Before an authorised officer makes a decision that may not be favourable to a client, the authorised officer should notify the client of the decision to be made; provide information on which decision will be based; allow the client a reasonable opportunity to comment either verbally or in writing regarding the decision.

The aim of the hearing rule is to ensure that the decision is based on all the relevant facts.

Bias Rule

The bias rule requires that the decision maker not be interested in the matter to be decided, nor that there be an appearance that the decision-maker brings to the matter a prejudiced mind.

Bias may be in the form of:

Actual bias: This form of bias arises in the following situations:

  • When the decision maker has a financial or other personal interest which may result in personal gain (conflict of interest).
  • When the decision maker has already pre-judged the outcome and formed a conclusion incapable of alteration regardless of the argument or evidence presented.
  • When the decision maker is prejudice or has a predisposition against the subject and is incapable of making an unbiased decision.

Example: It is likely that an authorised officer would breach the bias rule if they owned shares in an exporting company, and decided to certify that company’s goods for export.

Note: As per the Public Service Act 1999, Section 13 – Code of Conduct, an APS employee must disclose, and take reasonable steps to avoid, any conflict of interest (real or apparent) in connection with APS employment.

It is essential that any possible conflicts of interest are declared. Refer to the Regional Plant Export Program Manager for further details.

Apprehended bias may occur:

  • When it is perceived that the decision maker has an actual bias
  • When a decision maker gives an outward appearance of being biased.

Example: If an authorised officer openly stated that they didn’t agree with allowing export of product to a certain country due to current international political issues and then prohibited export of a consignment to that country due to legitimate findings of contamination, the client may perceive that the officer has an actual bias.

Example: If an authorised officer has a history of disagreements with the same client on decisions made, the client may perceive that the officer has an actual bias.

‘No Evidence’ Rule

The 'no evidence' rule requires that an administrator's decision be based upon logically probative evidence. Essentially, this means that the decisions of authorised officers should be reasonable and based on all the relevant facts that can be proved.

Work Practices and Procedures

Although each decision must be made on a case by case basis, it is important to follow work procedures and to take into account relevant organisational parameters such as:

  • AQIS policy documents
  • Client service standards
  • Standard operating procedures (SOP’s)
  • Work instructions
  • Guidelines/Manuals
  • Supervisor’s advice
  • Industry Advice Notice’s (IAN’s)
  • Export Operational Notice’s (EON’s)

Note: Compliant decision making assists the organisation in achieving national consistency.

Public Service Act 1999

It is a requirement of the Public Service Act 1999 that services are delivered in a fair manner. To make a fair decision it is important to ensure that the decision is free from factors such as favouritism, self-interest, bias and dishonesty. To quote the APS Values: “The APS delivers services fairly, effectively, impartially and courteously to the Australian public and is sensitive to the diversity of the Australian public.”

DAFF Client Service Charter

It is a requirement under the DAFF Client Service Charter that staff provide high quality and professional services, programmes and policy advice.

DAFF Service Promise

We will act professionally by:

  • Providing prompt and accurate information
  • Including contact names and phone numbers in our correspondence
  • Consulting widely before making decisions
  • Informing you about decisions that will affect you
  • Seeking to be effective and efficient in the delivery of our services.

We will treat you fairly by:

  • Seeking to engage you, where possible, on policy and programme proposals that will affect you
  • Giving you reasonable time to respond to proposals.

We will treat you with respect by:

  • Explaining our decisions
  • Providing clear, accurate, ongoing advice and information.

We will act with integrity by:

  • Monitoring our performance by analysing and responding to your feedback
  • Striving at all times to manage our work ethically, efficiently and effectively.

We will be open by:

  • Making it easy for you to contact the right staff member to answer your question
  • Ensuring the information you need is easily available through appropriate channels
  • Being open to ideas and suggestions.

Reasonable Person

Decisions should be made using the ‘reasonable person’ rule.

‘Reasonable person’ is a phrase used to represent a hypothetical person who exercises qualities of attention, knowledge, intelligence and judgment that society requires of its members for the protection of their own interest and the interests of others.

The reasonable person test is based on either a failure to do something that a reasonable person would do, or on the doing of something that a reasonable person would not do.

If a decision is made without using the ‘reasonable person’ rule, the decision made may be considered to be ‘unreasonable’ which may then lead to the decision being over ruled.

Relevant Considerations

All information and considerations relevant to the situation must be taken into account when making a defensible regulatory decision.

Relevant considerations are usually found in the applicable legislation and have a significant impact on whether the decision will be found to be defensible or whether the decision will be over ruled. Where no legislation or standards exist, other considerations taking in to account the overall circumstances guide what is relevant.

The Export Control (Plant and Plant Products) Orders 2011 lists acceptable levels of pests and contaminants. A relevant consideration may be any live insects. A nil tolerance for pest infestation must be applied to all relevant goods presented for inspection.

To support the considerations taken into account, it is important to base each decision on:

  • Facts
  • Evidence or lack of evidence
  • Thorough and impartial consideration of all facts and evidence.

Facts

When establishing the facts of a situation, consider the following:

  • What is the situation?
  • Who is involved?
  • When did it occur / is it occurring?
  • Where did it occur / is it occurring?
  • How did it occur?

Evidence

When gathering evidence to support the decision, ensure that the evidence is:

  • Relevant – related to the issue
  • Credible – the source is reliable and believable
  • Significant – to address key concerns
  • Collected and stored in an appropriate manner.

Note: Evidence may occur in many different forms for example: verbal statements, documents, photographs, insects, contamination, produce with disease symptoms. If there is any doubt about what type of evidence to collect, or how it should be stored, please contact your Regional Plant Exports Program Manager.

Thorough and impartial consideration of all facts and evidence

When using the facts and evidence as a part of the decision making process, it is important to ensure that all facts and every piece of evidence are taken into account with no biased exclusions.

Independently Considering the Facts

When making a decision, it is important to independently consider all the facts.

If the decision maker is unduly influenced by another person, the decision made may be found to have been made whilst ‘acting under dictation’.

The decision maker must exercise their own discretion and not surrender the decision- making process to others.

Where the decision maker is making a decision following recommendations presented by others, it is necessary for them to consider all facts and all legal issues independently and be able to show that an independent decision has been made.

Reconsidering the Decision

The ability of the decision maker to reconsider the decision if more evidence or information is provided depends on whether the legislation includes the power to vary or revoke.

Example: Under the Export Control (Prescribed Goods) General Orders

Order 6.09 – Inspection of goods if condition changed etc

If an authorised officer has reasonable grounds to believe that:

  1. an Export Control Order that applies to prescribed goods has not been complied with; or
  2. the condition of the goods has changed, before or after the granting of an export permit for the goods but before the export of the goods;
  3. an authorised officer must inspect the goods; and
  4. if an export permit has been issued for the goods, the Secretary may suspend the permit until the inspection and any analysis of the goods is completed.

Example: A consignment of bagged wheat is passed for export at a registered premises and the exporter loads the wheat into shipping containers. Three months later, the exporter asks for a permit and phytosanitary certificate for the consignment which was delayed and held at an unregistered premises.

What should be done?

The goods need to be reinspected as the export permit is invalid - Export Control (Prescribed Goods General) Orders 2005, Part 6 Export Permits and Related Matters, Clause 6.04 Validity of Permit ‘An export permit is valid for 28 days after it is issued’. The goods must also be reinspected as the export permit.

References

For the most current federal legislation go to the ComLaw website.

More Information

  • DAFF website
  • Administrative Appeals Tribunal Act 1975
  • Administrative Decisions (Judicial Review) Act 1977
  • AQIS Service Charter
  • Export Control Act 1982
  • Export Control (Prescribed Goods – General) Order 2005
  • Export Control (Plants and Plant Products) Orders 2011
  • Public Service Act 1999
  • Freedom of Information Act 1982
  • APS Values
  • APS Code of Conduct

Relevant eLearning Training Modules

  • Defensible Decision Making

Questions?

  • You can contact your state supervisor or manager to clarify any aspects of this volume in the first instance.
  • You can also direct a specific question or provide feedback to Plant Export Training.

Decision Making Flow Chart Diagrams

Diagram 1: Principles of Defensible Regulatory Decision Making Flow Chart

This diagram illustrates the factors an officer should consider when making a decision - these factors are outlined in full in this volume 

Diagram 2: Flow Chart for Horticulture and Grain Inspections

This diagram illustrates the steps pre, during and post an inspection that officers should complete, which are outlined in full in this volume 

This diagram illustrates the steps pre, during and post an inspection that officers should complete, which are outlined in full in this volume 

Volume 2 | Index | Volume 4

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