ADFP 06.1.3

EXECUTIVE SERIES

ADFP 06.1.3

GUIDE TO ADMINISTRATIVE DECISION–MAKING

Australian Defence Force Publication 06.1.3 is issued for use by the Australian Defence Force and is effective forthwith. This publication supersedes Australian Defence Force Publication 06.1.3 edition 1.

A.G. HOUSTON, AO, AFCAir Chief MarshalChief of the Defence Force

Department of DefenceCanberra ACT 2600

25 January 2010

Edition 2

© Commonwealth of Australia 2010

This work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may be reproduced by any process without prior written permission from the Australian Government Department of Defence.

Announcement statement—may be announced to the public.

Secondary release—may be released to the Australian Government Department of Defence, its contractors and their equivalents in America, Britain, Canada, and New Zealand, and other Australian Federal Government Departments and Agencies.

All Defence information, whether classified or not, is protected from unauthorised disclosure under the Crimes Act 1914. Defence information may only be released in accordance with the Defence Security Manual and/or Defence Instruction (General) OPS 13–4—Release of Classified Defence Information to Other Countries, as appropriate.

The Commandant of the Joint Warfare Doctrine and Training Centre is the approving authority for the release of Unclassified joint doctrine publications to countries not covered by the secondary release statement.

ADFP 06.1.3First edition 2003Second edition 2010

Sponsor Vice Chief of the Defence Force

Developer Director-General Australian Defence Force Legal ServiceCANBERRA ACT 2600

Publisher Defence Publishing ServiceDepartment of DefenceCANBERRA ACT 2600

Defence Publishing ServiceDPS: April 2010

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FOREWORD1. Australian Defence Doctrine Publications (ADDP) and Australian Defence Force Publications (ADFP) are authorised joint doctrine for the guidance of Australian Defence Force (ADF) operations. ADDP are pitched at the philosophical and high-application level, and ADFP at the application and procedural level. Policy is prescriptive as represented by Defence Instructions, and has legal standing. Doctrine is not policy and does not have legal standing, however it provides authoritative and proven guidance, which can be adapted to suit each unique situation.

2. ADF commanders and other personnel are entrusted with the authority to make a wide range of administrative decisions. Some of these decisions may adversely affect a member’s rights, interests or expectations and it is necessary that these decisions should be made properly and with due regard for the law. Incorrect administrative decisions have an adverse impact on morale and operational efficiency and correction of such decisions requires expenditure of valuable time and effort. This guide is intended to set out the legal requirements and procedures that will guide proper administrative decision-making in the ADF.

3. The Administrative Review Council’s Good Practice Guides on Decision Making have been referred to in Defence’s drafting of this ADFP.

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AMENDMENTSProposals for amendment of ADFP 06.1.3 may be sent by Minute or Email to:

SO1 Doctrine Joint Warfare Doctrine and Training Centre RAAF Base WILLIAMTOWN NSW 2314

SO1Doctrine.jwdtc@defence.gov.au

DOCTRINE PUBLICATION HIERARCHYThe hierarchy of ADDP and ADFP and the latest electronic version of all ADDP and ADFP are available on:

DRN located at http://intranet.defence.gov.au/vcdf/sites/JWDTC/; and

DSN located at http://web.wlm.nnw.dsn.defence.mil.au/jwdtc/.

Amendment Effected

Number Date Signature Date

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ADFP 06.1.3

CONTENTSPage

Authorisation iForeword iiiAmendments vContents vii

Paragraph

CHAPTER 1 OVERVIEW

INTRODUCTIONAIMSCOPEADMINISTRATIVE LAW BACKGROUNDSources of administrative law 1.7Corporate governance 1.9Administrative sanctions 1.10Procedural fairness 1.12Decisions 1.16Review of administrative decisions 1.17Statement of reasons 1.18Advice 1.19

CHAPTER 2 PROCEDURAL FAIRNESS

INTRODUCTIONPROCEDURAL FAIRNESSRight to procedural fairness 2.3Principles of procedural fairness 2.5The hearing rule (the duty to disclose) 2.6The initiating authority 2.8Notice to the member 2.10Statement of proposed decision 2.12Statement of relevant facts 2.15Statement of other relevant information 2.19Duty to inquire and obtain all relevant information 2.21Attaching relevant information 2.23Response by the member 2.26Time for response 2.27Consideration of response by member 2.28Requirement for further inquiry 2.29New facts or information 2.30The rule against bias 2.31Making a decision 2.37Failure to afford procedural fairness 2.40

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Correcting common defects in procedural fairness 2.41Exceptions to procedural fairness 2.42

Annex:A. Notice to show cause format

CHAPTER 3 DECISION–MAKING

INTRODUCTIONDISCRETIONARY DECISION–MAKINGAUTHORITY TO MAKE A DECISIONSources of authority 3.7Delegation 3.8Authorisation 3.11REASONABLE DECISIONSufficient evidence 3.14Sufficient reasoning 3.15Relevant considerations 3.16Irrelevant considerations 3.18Briefing papers 3.19Further inquiry 3.20Exercising discretion 3.22Affording procedural fairness 3.25EVIDENCEStandard of proof 3.27Rules of evidence 3.30Forms of evidence 3.31Establishing facts 3.32Classification of evidence 3.33Weighing credibility of evidence 3.39Notification of the decision 3.42Reasons for decisions 3.44

Annex:A. Flow chart—making an administrative

decision and writing a statement of reasons for the decision

CHAPTER 4 REVIEW OF ADMINISTRATIVE DECISIONS

INTRODUCTIONLEGAL AND MERITS REVIEWSInternal review 4.3External review 4.8Alternative dispute resolution 4.19Advice 4.20

ADFP 06.1.3

CHAPTER 5 STATEMENT OF REASONS

INTRODUCTIONPURPOSE AND PROCESSPurpose 5.3Requests for statements of reasons 5.7Format and style 5.8Content 5.10The decision 5.11Findings on material facts 5.14The evidence on which the findings were based 5.18The reasons for the decision 5.21Handling of confidential or sensitive information 5.25Legal advice 5.26

Acronyms and Abbreviations

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CHAPTER 1

OVERVIEW 1

INTRODUCTION 1.1

1.1 Australian Defence Force (ADF) commanders and other personnel are entrusted with the authority to make a wide range of administrative decisions. Administrative decisions can adversely affect members’ rights, interests and expectations. An example of such a decision is a decision to impose an administrative sanction on an ADF member. An administrative sanction may be imposed on a member of the ADF whose conduct, performance or standards are unsatisfactory. Administrative sanctions include unsuitability reports, formal warnings, censures, change of employment category, removal of security clearance, denying or delaying promotion or revocation of provisional promotion, removal from an appointment or locality (including removal from command), reduction in rank and termination of service. It should be noted that the term ‘administrative sanction’ is used in this guide in lieu of the previously used term ‘adverse administrative action’. The term ‘sanction’ is now used as it provides more clarity in differentiating between administrative and disciplinary/criminal proceedings.

Executive summary

• Administrative decisions affect members’ rights, interests and expectations.

• The aim of this guide is to provide general advice on the law with practical guidance to decision-makers.

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1.2 All administrative decisions must be made properly and in accordance with the law; in particular, the requirement to provide procedural fairness, also known as ‘natural justice’. Although an administrative decision may be the correct or preferable decision on the merits, it may still be legally invalid for procedural and other legal irregularities.1 Administrative decision-makers in the ADF are required to make lawful and accountable administrative decisions for the following reasons:

a. All government departments and agencies, including Defence, are required to comply with the law when making administrative decisions. The legal requirements for administrative decisions are found in legislation such as the Administrative Decisions (Judicial Review) Act 1977 (AD(JR) Act).

b. If a decision breaches a legal requirement, it can be cancelled after an internal review or set aside by an external review agency, and the ADF cannot enforce or rely upon it.

c. Compliance with the legal requirements of procedural fairness promotes morale and reinforces public and ADF confidence that decisions are made in a manner that is fair, transparent and lawful. Natural justice protects personal reputations as well as other interests.

d. Proper administrative decisions promote operational efficiency because they are less likely to require the diversion of financial resources to fund unnecessary dispute resolution, internal review including redress of grievance, and external review by agencies such as the Defence Force Ombudsman, and the courts. These internal and external reviews are resource intensive, time consuming, and can divert personnel and resources away from operational tasks.

e. A fair decision-making process results in better decisions and enables errors to be identified and corrected.

AIM 1.3

1.3 The aim of this guide is to provide generic and practical guidance to commanders and other ADF personnel who make administrative decisions, to encourage good administrative decision-making practices in the ADF and to improve the quality of administrative decisions. In particular, the guide is intended to assist ADF decision-makers to better understand the general legal principles relevant to administrative decision-making.

1 For an administrative decision to be defendable, it must satisfy two tests. First, the substance of the decision must be correct on its merits and second, the decision must be made in a manner that complies with certain legal requirements.

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SCOPE 1.4

1.4 This guide is not intended to be a textbook on administrative law. This guide focuses on the legal principles relevant to making administrative decisions in particular, in connection with the personnel management of ADF members, including Reserve personnel. It should be used as a guide for administrative decision-makers in the ADF. It should be used in conjunction with other Defence Instructions, Australian Defence Doctrine Publications, Australian Defence Force Publications and policy as required. ADF Legal Officers are able to provide further advice on administrative law and its application to individual circumstances.

1.5 This guide does not generally deal with the application of administrative law to specific actions or issues referred to in ADF instructions, directives or other ADF policies.

1.6 Generally, administrative decisions involve an exercise of discretion. A commander or other decision-maker, when exercising this discretion, must comply with the requirements of administrative law. The following chapters set out the legal principles that guide discretionary administrative decision-making:

a. Chapter 2—‘Procedural fairness’ considers procedural fairness in detail and focuses on the steps leading to the making of the decision and the manner in which the decision is made.

b. Chapter 3—‘Decision–making’ sets out the legal criteria relevant to lawful decision-making, including procedural fairness.

c. Chapter 4—‘Review of administrative decisions’ explains internal and external, legal and merits review of decisions.

d. Chapter 5—‘Statement of reasons’ provides guidance on the factors that should be taken into account when giving reasons and explains how a formal statement of reasons should be prepared. It outlines the advantages of a comprehensive, balanced and well drafted statement of reasons.

ADMINISTRATIVE LAW BACKGROUND 1.7

Sources of administrative law 1.7

1.7 Administrative law governs the activities and administrative actions of government and specifically deals with the decision-making of administrative units of government such as tribunals, boards or commissions. It provides

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different mechanisms and principles that enable people to question or challenge the decisions of government agencies and secure the accountability of decision-makers. Administrative law is considered a branch of public law which is the law that governs the relationship between individuals and the state. Legislation and judicial decisions provide the sources of law on administrative decision-making. The legal criteria for decision-making are generally reflected in legislation, in particular, the AD(JR) Act. Courts and tribunals review administrative decisions to ensure the decisions are made in accordance with the relevant legislation and common law principles.2

1.8 This guide reflects legislative requirements and common law principles relevant to good administrative decision-making. Good administrative decision-making ensures that:

a. the steps leading to the decision and the procedures by which the decision is made comply with relevant legal principles;

b. a defensible decision is made;

c. the disciplinary and operational interests of the ADF are satisfied;

d. the decision is less likely to require internal or external review; and

e. the decision-making process is fair and transparent.

Corporate governance 1.9

1.9 Good administrative decision-making is an important aspect of ‘corporate governance’.3 Commanders and other decision-makers are required to ensure they exercise their decision-making and other command responsibilities with due diligence and care, including compliance with the laws and policies regulating the activities of the ADF. The courts have set a high standard for the performance of this duty. Failure of commanders and other decision-makers to exercise due diligence may result in an administrative sanction or disciplinary action being taken against them.

2 Butterworths Australian Legal Dictionary defines ‘common law’ as ‘(the) unwritten law derived from the traditional law of England as developed by judicial precedence, interpretation, expansion and modification: Dietrich v R (1992) 177 CLR 292 at 319–20; 109 ALR 385. The common law creates specific criminal offences, contains rules of evidence and practice and procedure, and sets out the principles and privileges of citizens’.

3 Corporate governance is an internal system that encompasses policies, processes and people and serves the needs of its stakeholders by directing and controlling management activities with objectivity and integrity. Simply put, it shows that an entity, such as the ADF, encompasses ethics and moral duties that allow for accountability and transparency.

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Administrative sanctions 1.10

1.10 Administrative sanctions are a type of administrative decision usually initiated and/or imposed when the conduct or performance of a member is below the standard required and is not in the interests of the ADF. It is official action that reflects formal disapproval on a temporary or permanent basis. Further, administrative sanctions can be imposed instead of, or in addition to, disciplinary proceedings under the Defence Force Discipline Act 1982(DFDA) or civilian court proceedings. Guidance on when DFDA action should be taken or matters referred to the civilian authorities is contained in Defence Instruction (General) (DI(G)) PERS 45–4—Australian Defence Force Prosecution Policy and DI(G) PERS 45–1—Jurisdiction under Defence Force Discipline Act—Guidance for Military Commanders.

1.11 Conduct or performance which gives rise to DFDA or civilian court proceedings may also be relied upon to support administrative sanctions. It does not matter if a member is convicted of an offence under the DFDA or by a civilian court or not, an administrative sanction may still be imposed in respect of the same conduct, provided that the aim of the sanction is protective. This means that the administrative sanction must be intended to reinforce required standards. The aim of the sanction must not be punitive, ie to punish. It is the intention of the person imposing the sanction which is relevant rather than the perception of the person subject to the administrative sanction or the result. If a member is found not guilty of a service or civilian offence, there may still be sufficient reliable evidence of misconduct or inadequate performance to warrant administrative sanction. If an administrative sanction is to be initiated in respect of the same conduct, procedural fairness and the other criteria for lawful decision-making will apply.

Procedural fairness 1.12

1.12 Chapter 2 focuses on procedural fairness (also known as ‘natural justice’) and provides practical guidance to decision-makers on the requirements of procedural fairness. Generally, the following two broad rules for procedural fairness apply:

a. Hearing rule (duty to disclose). Decision-makers must afford a member whose interests will be adversely affected by a decision (the affected member) a fair opportunity to present his or her case. In order to do this, the affected member must know the case against them. This requires the decision-maker to disclose any adverse information which is ‘credible, relevant and significant’ to the affected member, regardless of whether it is relied on in the final decision-making process.

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b. Bias rule. The decision-maker must not be biased and must not be seen to be making a unfair, partial and unprofessional decision based on something other than the rights of the member and the merits of the case.

1.13 If there has been a failure to afford procedural fairness, a decision may be considered invalid upon review by a superior command authority, by an external agency such as the Defence Force Ombudsman, or a court. If a decision is found to be invalid, it can be revoked.

1.14 Exceptions to the hearing rule. While the requirements of natural justice call for disclosure of all adverse information to the affected member, there are some circumstances in which information can be withheld:

a. Information which is not ‘credible, relevant and significant’. This is information that is dismissed from further consideration prior to the final decision-making process. This is not to be confused with information which is considered but not relied on in the final decision-making process.4

b. Information supplied in confidence. The decision-maker may exercise discretion, taking into account considerations of fairness to other people who may be adversely affected by disclosure.5

4 Applicant Veal of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 222 ALR 411 at 417.

5 Information supplied in confidence can, in some circumstances, qualify the application of the Hearing Rule. Where an individual providing information to an administrative body would prefer their opinion to be kept confidential, the decision-maker must act fairly in the particular circumstances of the case. Discretion must be exercised, taking into account considerations of fairness to other people who may be adversely affected by disclosure and it will not necessarily follow that there has been a breach of natural justice if certain information is not disclosed (Kioa v West (1985) 159 CLR 550 at 52–53 per Davies J).

If the disclosure of confidential information will not reveal its author, the substance of the information should be communicated to the affected party. Decision-makers are not necessarily required to advise the affected party who provided the information or even what form the information was supplied in. This accommodates the requirement of procedural fairness in terms of giving the affected party an opportunity to dispute adverse information, as well as the public interest in individuals freely volunteering relevant information without fear of ramification (Applicant Veal of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 222 ALR 419 and R v Gaming Board of Great Britain; Ex parte Benaim and Khaida (1970) 2 QB 417 at 431–2).

Confidentiality may be essential for the success of an inquiry or to preserve the integrity of the system itself. Where the release of adverse information to affected parties will deter people from making complaints in the first instance, withholding the information may be justified (Re Boyle and Australian Broadcasting Corporation No N92/322 AAT No 8565 at 21 and 24).

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c. Information containing highly emotive language. In situations involving complaints by one person against another, release of information to the other party in its entirety may exacerbate tension and ill-feeling between the parties, causing delay to the speedy resolution of the complaint.6

d. Information which, if disclosed, could be contrary to Australia’s national security interests. In such situations, there exists an obligation to positively consider what might be disclosed without unduly detracting from Australia’s national security interests.7 Any national security claims must be credible and consistently applied. Also, the decision-maker should disclose the substance of material if it does not detract from Australia’s national security interests.

e. Information which, if disclosed, could compromise the life or safety of a witness. This information could compromise the life or safety of a witness or the identity of a whistleblower falling within the ambit of the Defence Whistleblower Scheme.8

f. Information which is subject to ‘legal professional privilege’. Legal advice is to always be sought when considering disclosing any legal in confidence information, substance or otherwise.

6 See Re Boyle and Australian Broadcasting Corporation No N92/322 AAT No 8565 at 21 and 24.

7 Requirements of national security can take priority over strict adherence to the Hearing Rule (Leghai v Director-General of Security (2007) FCAFC 37 at 48). However, this exception may only be applied where the obligation to positively consider what might be disclosed to the subject without unduly detracting from Australia’s national security interests, has been discharged. In the Leghai decision, the Full Court held that this obligation was discharged by the Australian Security and Intelligence Organisation, Director-General of Security’s personal and genuine consideration of the question whether disclosure would be contrary to the national security interest.

8 A decision-maker may preserve the anonymity of a witness whose evidence may be crucial and whose life or safety would be in jeopardy if his name were published (Re National Companies and Securities Commission v Bankers Trust Australia Limited and Others (1989) FCA 530; (1990) 8 ACLC 1; 24 FCR 217 at 19). In addition, directions can be given in those cases to limit the persons who have access to the confidential information once disclosed, and constraints may be placed on those persons requiring that the information not be disclosed to others and requiring the use of it solely for the purpose of the particular proceeding. Such directions however, must be within the ambit of what is considered ‘reasonably necessary’ to achieve the confidentiality of the information.

Slightly different rules apply to information relating to sexual offences. Information that directly relates to respondents in matters involving sexual offences may be provided following the conduct of any investigation (see DI(G) PERS 35–4—Management and Reporting of Sexual Offences and subject to the requirements of DI(G) ADMIN 27–1—Freedom of Information Act—Implementation in the Department of Defence, DI(G) ADMIN 27–2—Access to Defence and Defence-related archival records under the Archives Act 1983, the Privacy Act 1988 and the Defence Workplace Relations Manual).

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1.15 Nonetheless, where particular circumstances restrict disclosure, every effort must be made to at least disclose the substance of the adverse information.

Decisions 1.16

1.16 Chapter 3 outlines the legal criteria, which must be followed when making a decision. The legal criteria are different from the merits of the decision. The merits concern whether the decision is preferable in the circumstances. The legal criteria focus on whether the legal requirements of administrative decision-making are satisfied. These requirements include whether the:

a. decision-maker has the authority to make the decision;

b. decision was reasonable;

c. decision-maker took into account relevant considerations;

d. decision-maker disregarded irrelevant factors;

e. decision has been made under dictation, or orders, or constitutes an inflexible application of policy; and

f. person affected was afforded procedural fairness.

Review of administrative decisions 1.17

1.17 Chapter 4 further explains the difference between legal and merits review and briefly sets out various internal and external options for review of administrative decisions.

Statement of reasons 1.18

1.18 Chapter 5 provides brief guidance on preparing reasons for a decision. Giving reasons for a decision improves the quality of administrative decision-making by providing transparency and an explanation of how and why the decision was made.

Advice 1.19

1.19 This guide provides an overview of common or generic legal principles relating to administrative decision-making in respect of the application of ADF policies and the exercise of command and management functions. The Director-General Australian Defence Force Legal Service is the sponsor of this guide. The Director of Military Administrative Law is the principal legal

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adviser on legal issues relating to administrative decision-making in the ADF. Decision-makers may obtain more specific advice on military administrative law from ADF unit, command or headquarters legal officers.

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CHAPTER 2

PROCEDURAL FAIRNESS 2

INTRODUCTION 2.1

2.1 Although the principles of procedural fairness apply to all administrative decisions affecting a person’s rights, interests and legitimate expectations, this chapter specifically deals with the generic legal principles and practical requirements for procedural fairness which apply when making an administrative decision adverse to a member. A breach of procedural fairness can result in the administrative decision being invalidated.

2.2 Procedural fairness is concerned with the process or steps leading to an administrative decision and to the manner in which the decision is made.

PROCEDURAL FAIRNESS 2.3

Right to procedural fairness 2.3

2.3 A member is entitled to procedural fairness for administrative decisions that may prejudice the member’s rights, interests or legitimate expectations. In this context, the decision might include a refusal to approve a claim for an allowance.1 Examples of rights or interests include personal and property rights, such as pay, entitlements and personal or military status or reputation. The expression ‘legitimate expectations’ refers to the expectation

Executive summary

• Failure to follow procedural fairness may render an administrative decision invalid.

• In most circumstances a member must be given a reasonable chance to express their views.

• A decision-maker must make a fair, impartial and professional decision, without bias.

1 In Kioa v West (1985) 159 CLR 550 Justice Mason explained: ‘The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject to the clear manifestation of a contrary statutory intention.’ See related cases such as, Minister for Immigration and Ethnic Affairs v Teoh(1995) 183 CLR 273; Minister for Immigration and Multicultural Affairs; Ex Parte Lam (2003) HCA 6. In Lam, it was held that ‘… the failure to meet that expectation does not reasonably found a case of denial of natural justice. The notion of legitimate expectation serves only to focus attention on the content of the requirement of natural justice in this particular case … in a case such as this, the concern is with the fairness of the procedure adopted rather than the fairness of the outcome.’

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of a fair process not the entitlement to a benefit or privilege; that is, where an individual may have a legitimate expectation of a particular benefit or privilege he/she is entitled to procedural fairness. For instance, if a decision-maker were to contemplate denying a person a legitimately expected benefit or privilege, the decision-maker is obliged (in accordance with the ‘hearing rule’ (see below)) to present such a contemplation with reasons to the person so that the person has a chance to be heard.2 The ‘legitimate expectation’ principle does not mean that a person who has a legitimate expectation of a benefit or privilege is entitled to retain or obtain the benefit or privilege; it simply means that where a legitimate expectation of a benefit or privilege exists, the person relying on that legitimate expectation is entitled to a fair hearing if a decision-maker is contemplating altering or removing the ‘legitimately expected’ benefit. Further, Australian law is that the expectation must be reasonable and more than a hope.

2.4 Irrespective of the rank or position held, all Australian Defence Force (ADF) personnel are entitled to, and can expect to be afforded, procedural fairness in respect of an administrative decision relating to them.

Principles of procedural fairness 2.5

2.5 The main legal principles that underpin procedural fairness are as follows:

a. Hearing rule. Decision-makers must afford a member whose interests may be adversely affected by a decision a fair opportunity to present his or her case. In order to do this, the affected member must know the case against them. This requires the decision-maker to disclose any adverse information which is ‘credible, relevant and significant’ to the affected member, regardless of whether it is relied on in the final decision-making process.

b. Bias rule. The decision-maker must not be biased and must not be seen to be making a unfair, partial and unprofessional decision based on something other than the rights of the member and the merits of the case.

2 Justice McHugh in Haoucher v Minister for Immigration and Ethnic Affairs (1990) 19 ALD 577 stated that a legitimate expectation can arise when ‘… some undertaking or course of conduct acquiesced in by the decision-maker or something about the nature of the benefit or privilege which suggests that, in the absence of some special or unusual circumstance, the person concerned will obtain or continue to enjoy a benefit or privilege.’

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The hearing rule (the duty to disclose) 2.6

2.6 In the ADF, the principles of procedural fairness are generally reflected in the following steps:

a. An initiating authority issues a written notice containing the following:

(1) the proposed sanction or other administrative action;

(2) a statement of the facts, information, or other evidence considered credible, relevant and significant to the decision to be made;

(3) relevant documents;

(4) the effects of the proposed decision; and

(5) an invitation to the member to respond within a specified time.

b. The member provides a written response.

c. The decision-maker (a person other than the initiating authority) considers the following:

(1) the notice issued by the initiating authority, along with the material provided to the member affected; and

(2) the member’s response.

d. The sufficiency of the facts on which the decision is to be based.

e. The decision-maker makes a decision as soon as practicable and without unreasonable delay.

f. The decision-maker notifies the member, in writing, of the decision and reasons for the decision.

2.7 The process described above is generic and there may be different forms or titles used in the ADF according to the various Defence Instructions, policies, practices and traditions of each Service. Notwithstanding these differences, and irrespective of the title or forms used in each Service, ADF decision-makers must ensure that, in respect of administrative sanctions, the requirements of procedural fairness are complied with. Exceptions to the hearing rule are outlined in paragraph 1.14 while some general exceptions to procedural fairness are outlined in paragraph 1.14.

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The initiating authority 2.8

2.8 Defence policy requires that the officer who initiates an administrative sanction (‘the initiating authority’) must not be the person who makes the decision about the final administrative outcome (‘the decision-maker’), unless this separation is not reasonably practical.3 Nonetheless, it is not necessarily unlawful for the initiating authority and decision-maker to be the same person and the process or decision will not, for this reason only, be invalid. Guidance on who will be the initiating authority and decision-maker for some situations can be found in the Defence (Personnel) Regulations 2002 and the delegations made under those regulations. For formal warnings and censures guidance can be found in Defence Instruction (General) (DI(G)) PERS 35–6—Formal Warnings and Censures in the Australian Defence Force. In this guide the term ‘decision-maker’ is used, but some ADF policy uses the term ‘imposing authority’.

2.9 The law generally does not require separation of these functions but guidance on good administrative decision-making suggests it is preferable to remove the possible suggestion of bias. For this reason, the ADF has adopted this practice whenever possible. As an example of how the law does require separation, in respect of officers, the Defence (Personnel) Regulations 2002envisages that issuing a termination notice inviting the officer to submit a statement of reasons and the actual decision on termination can both be done by the Governor-General. However, most terminations of service do not involve the Governor-General. Where the Governor-General is not involved, a separate initiating authority and imposing officer is required and the delegations are outlined in instruments. Particularly with regard to sanctions initiated pursuant to the Defence (Personnel) Regulations 2002 it is imperative that there is an understanding of the consequences that may result from initiating action. For instance, when a termination notice is issued to an officer pursuant to regulation 85, if the officer does not submit a statement of reasons (ie Response to Notice to Show Cause) within 28 days, the imposing authority must terminate the members service unless there have been changes to circumstances which effect reasons for terminating since the termination notice was given to the member. This arguably has the effect that the imposing authority cannot exercise ultimate discretion as to whether the officer is to be terminated or not.

3 For example:

a. At unit level, a notice to show cause for a formal warning of an officer could be issued by the executive officer. The commanding officer decides whether to impose the censure.

b. In the case of involuntary termination of an airman, a notice for termination could be issued by an appropriate member of the Directorate of Personnel—Air Force. The Director of Personnel—Air Force or other authorised delegate could make the termination decision. The reason for having a separate initiating authority and decision-maker is because this practice avoids perceptions or allegations of a conflict of interest. It may, in some instances, be difficult to separate these roles.

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Notice to the member 2.10

2.10 The format and title of a notice to the member varies according to ADF and single service instructions, policies and practices. In some cases, a notice may take the form of a ‘Notice to Show Cause’. In other cases, it may take the form of a minute or official letter to the member. The format or style of notice has no significant legal consequence. Irrespective of the format of the notice, it should (for evidentiary purposes) be in writing and, in most circumstances, comply with the requirements of procedural fairness.

2.11 Annex A is an example of a generic ‘Notice to Show Cause’ that reflects the matters referred to in subparagraph 2.6.a. The use of this example is subject to the requirements of Defence Instructions and other policies.

Statement of proposed decision 2.12

2.12 This statement refers to the proposed decision. For example, a proposed decision could be:

a. ‘censure or formal warning’;4

b. change of employment category;

c. reduction in rank, eg ‘reduction in rank to Lieutenant with 12 months seniority’;

d. removal from an appointment or locality, eg ‘removal from a flying safety course’ and ‘return to Australia’;

e. ‘termination of service’, eg ‘discharge from the Navy’;

f. ‘removal or downgrading of security clearance’; or

g. ‘denying or delaying promotion’ or ‘revocation of provisional promotion’.

2.13 The notice needs to state, in precise and full terms, the actual decision proposed, or alternative decisions; for example, if the decision-maker proposes to impose either a formal warning or a censure. If an initiating authority raises in a ‘Notice to Show Cause’ alternative sanctions to termination, legal advice is to be sought as there are legal difficulties associated with the creation of such ‘hybrid’ notices.

4 See DI(G) PERS 35–6. This instruction deals with unsatisfactory conduct, performance or standards such as personal misconduct and/or professional failure; conduct that adversely affects the administrative efficiency/operational effectiveness of a unit; unacceptable behaviour, poor job performance; or errors of judgement, failings or actions that are intentional, careless, reckless or negligent.

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2.14 The notice should not imply that a decision has already been made. A notice that refers to a ‘provisional’ or ‘draft’ decision for example, could give rise to an impression that the matter has been decided before the member has had the opportunity to comment. What appears at first to be an ‘open and shut case’ can look very different when the other side of the story is revealed.

Statement of relevant facts 2.15

2.15 A member is entitled to know the nature of the proposed sanction and the possible consequences of the proposed sanction. The notice should provide sufficient information to allow the member to make effective use of the right to respond and present arguments. For example, if the decision concerns allegations about a member’s behaviour, details of the allegations should be provided in the notice. The notice should be consistent with any statutory requirements and may require disclosure of additional information (for example, evidence in relation to the criteria in regulation 7 of the Defence (Personnel) Regulations 2002 for decisions made under those regulations).

2.16 The notice should precisely and clearly summarise the matters alleged or other information about the misconduct or inadequate performance of the member. For example, the statement could comprise one or more paragraphs setting out the time, date, place, description of the behaviour and the consequences of the proposed sanction. In more complex matters, the notice could contain two or more separate allegations referring to a course of misconduct and/or inadequate performance. Allegations of separate instances of misconduct or training failures over a period of months or years must be particularised.

2.17 It is generally not sufficient to merely state that a member has misbehaved or has been charged or convicted of a Defence Force Discipline Act 1982 (DFDA) or civilian offence, or to simply state that the member lacks certain qualities or capabilities. It is necessary to particularise the actual behaviour or performance that forms the basis of the proposed sanction. It is necessary to state precisely what the member did, or did not do, on one or more occasions.

2.18 The notice should contain only those facts that are relevant to the proposed decision or action. Irrelevant matters or other information should not be included in the notice.

Statement of other relevant information 2.19

2.19 Decision-makers must take positive steps to ensure that all relevant information is disclosed to the member. Any Defence Instructions or other policy documents that the decision-maker will take into account in making a decision should be listed in the notice. For example, in the case of discharge action for prohibited substance-related conduct or for failure to meet fitness

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standards, the notice should identify the specific Defence Instruction that is being relied upon. Other relevant information may include a member’s service history.

2.20 In some cases, before a notice is issued, an administrative inquiry may have been conducted to obtain information relating to the circumstances of the case. The evidence, findings and recommendations (if any) of the inquiry, and the decision of the inquiry appointing authority, may be relied upon to initiate an administrative sanction.5

Duty to inquire and obtain all relevant information 2.21

2.21 Initiating authorities and decision-makers must ensure that all reasonably practicable steps have been taken to obtain all relevant information.

2.22 The duty to inquire is limited. An initiating authority and decision-maker are under no obligation to make out a case for the member. Similarly, if the evidence supporting the facts and circumstances alleged is reliable, sufficient, relevant and apparently complete, then there is no obligation to initiate further inquiries. Australian law is that the duty to inquire applies when it is obvious that there is additional information or material that is relevant, rather than peripheral, to the proposed decision and the information should be obtained and considered.

Attaching relevant information 2.23

2.23 All relevant information must be conveyed to the member, generally in the form that it came to the attention of the decision-maker. For example, a copy of all relevant medical reports, witness statements or police reports, DFDA or civilian conviction certificates, inquiry officer reports or training reports should be attached to the notice for consideration by the member. In cases where the information cannot be conveyed to the member in the form in which it was received it must be provided in another form.6

2.24 Privacy and confidential information. If the documents contain personal information, the disclosure of which would be in breach of the Privacy Act 1988, then this information should be deleted as required by the Act. Information that is not relevant to the matter under consideration or information that will not be taken into account by the decision-maker should also be deleted. Generally, for privacy reasons, personal information that is

5 Where the information sought to be relied upon as the basis for adverse administrative action forms part of a record or report of an inquiry conducted under the Defence (Inquiry) Regulations 1985, it may first be necessary to seek authorisation for disclosure of the report pursuant to regulation 63 (see paragraph 2.25).

6 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170.

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not relevant to the central issues should be deleted, for example, home telephone numbers and addresses, or other personal information about the witnesses or other people. In addition, evidence or personal information relating to possible adverse findings or action proposed to be taken against other persons would normally be deleted. When information is given in confidence the requirements of procedural fairness are flexible. The law recognises that administrative decision-makers might have to protect confidentiality in order to obtain the information they need to carry out their duties. When confidential information that is adverse to an affected person is received, it might be sufficient to disclose the substance of the information while withholding the actual document and the particulars of the informant. Legal advice may be obtained regarding the privacy law provisions and the withholding of confidential information.

2.25 Inquiry reports. Generally, Ministerial authorisation is required for the disclosure of Inquiry Officer and Board or Commission of Inquiry reports conducted under the Defence (Inquiry) Regulations 1985. Further guidance on seeking Ministerial authorisation for disclosure can be found in Australian Defence Force Publication (ADFP) 06.1.4—Administrative Inquiries Manual, edition 2. If these reports contain information that is relevant to the issues to be considered by the decision-maker, then the reports should be disclosed to the member and copies provided. These documents would usually include the inquiry report itself and witness statements and the decision on the findings and recommendations.

Response by the member 2.26

2.26 The notice must invite the member to make a written response to the proposed decision within a specified time. This invitation reflects the procedural fairness requirement to give the member an opportunity to express their views before a decision is made. The member is entitled to the following:

a. Respond to the proposed decision, the facts as found by the decision-maker, the conclusions drawn, or any other relevant matter.

b. Attach any relevant statement, information or documents. This could dispute the finding of facts, provide new information that may affect the findings of fact, or provide an explanation of the extenuating circumstances surrounding the matters alleged, or character references.

c. Comment on what action, if any, the decision-maker should take.

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d. Request an extension of time in which to submit a response.

e. Seek assistance from another person or an ADF legal officer, if one is reasonably available.

Time for response 2.27

2.27 Generally the law does not provide a specific period for a response by a member. The law does, however, require that the member should be given a reasonable opportunity to do so. What is reasonable will depend on the circumstances of each case. Relevant factors include the complexity of the matter, seriousness of the consequences, time since the incident occurred, competing work and other demands on the member and his or her time (eg it may be an operational environment), and the amount of material to be considered by the member. The usual practice is to allow 14–28 days for a response. In some cases, however, it may be sufficient to allow one or two days. Some legislation, Defence Instructions or policies specify the time required for responses.

Consideration of response by member 2.28

2.28 Irrespective of whether a member submits a written response to a notice, a decision-maker must consider whether there is sufficient evidence to support the proposed decision and whether an administrative sanction is warranted in the circumstances. However, there may be statutory exceptions in this regard.

Requirement for further inquiry 2.29

2.29 If, after a response from a member, or at any time before a decision is made, it appears that there is further relevant information that should be considered by the decision-maker, then positive steps should be taken to obtain the further information. The steps that should be taken will depend on the circumstances of each case. It may simply be a matter of undertaking a further review of unit files or obtaining copies of existing reports and statements. In other cases, it may be necessary to conduct a Routine Inquiry or an Inquiry Officer Inquiry. ADFP 06.1.4 provides guidance on the type and conduct of administrative inquiries. If a sanction has been imposed, in the interests of procedural fairness, it may be that the action (eg consequences of a sanction) be suspended until the matter is finally determined one way or the other. The member must be advised of the outcomes of the further inquiry, provided with copies of any additional information or other evidence being considered and given a further opportunity to respond to the issues raised in the later inquiry before a decision is made.

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New facts or information 2.30

2.30 The application of the hearing rule (duty of disclosure) is a continuing one. If the decision-maker becomes aware of new evidence at any stage of the decision-making process, this information must be disclosed unless it is being disregarded because it is not credible, relevant and significant. The member is entitled to respond to those new matters and must be allowed sufficient time to submit a response should they wish to.

The rule against bias 2.31

2.31 The second principle on which procedural fairness is based is the rule against bias. A member is entitled to have administrative decisions affecting them by decision-makers who are impartial and fair. The issue of bias is most likely to be:

a. raised by a member in response to a notice to show cause;

b. raised by a member after a decision is made; or

c. identified by the initiating authority or decision-maker before a decision is made.7

2.32 ‘Actual bias’ means that the decision-maker has a predisposition to decide the matter otherwise than with an impartial and unprejudiced mind. Actual bias can arise if the decision-maker plays conflicting roles, such as making allegations and fact finding.

2.33 ‘Apparent or perceived bias’ means that in the circumstances a fair-minded observer might reasonably suspect that the decision-maker is not impartial. There needs to be an objective basis or real reason why there might be apparent or perceived bias. An allegation by one party that a decision-maker is biased, without any objective basis to the allegation should not normally require the decision-maker to step aside from making the decision. An apprehension or suspicion of bias can arise from things the decision-maker says or does that suggest he or she is either partial or hostile to one side or has formed prejudgements and is not open to persuasion. A closed mind might be demonstrated by ignoring evidence or dismissing it for insufficient reason.

7 In addition to giving a person a proper hearing before making any decision that affects a person’s interests, decision-makers must also not be biased in the eyes of a reasonable person nor have any financial interest in the outcome of the decision either directly or indirectly.

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2.34 If there is sufficient evidence to show actual or apparent bias by a proposed decision-maker, then the decision should not be made and the matter should be referred to another commander or authorised decision-maker for a decision on the issue. If the decision has already been made, then the decision should be treated as invalid, and the matter referred to another person for a fresh decision on the facts and merits of the case. When the matter is referred, the fresh decision-maker should not be informed of the outcome of the invalid decision.

2.35 A current or past command, management or other professional relationship between a member and a proposed decision-maker is not sufficient, of itself, to establish actual, apparent or perceived bias on the part of the proposed decision-maker. The decision-maker must not have an interest in the outcome of the decision (actual bias) or an appearance of bias (perceived bias).8 Justice should not only be done, it should manifestly be seen to be done.

2.36 If there is any concern about bias, legal advice should be obtained.

Making a decision 2.37

2.37 When a decision-maker is satisfied that the requirements of procedural fairness have been met and there is sufficient, reasonable and reliable evidence, a decision should be made on the facts and merits of the case. If there are any apparent defects in the process, then corrective action should be taken before a decision is made. For example, if a member has been given insufficient time to respond to a notice, then the member should be given the opportunity and a reasonable time in which to respond.

2.38 A decision should be made as soon as practicable and without unreasonable delay. It is a breach of procedural fairness to unreasonably delay, put off or refuse to make a decision because it is too difficult or disadvantages a member. The member should be notified in writing of the decision made and the consequences, if any, of the decision.

2.39 Chapter 3 contains guidance on the legal criteria for discretionary administrative decision-making and for evaluating the evidence for the purpose of making a decision.

8 An appearance of bias appears when it is firmly established that a suspicion may reasonably be engendered in the minds of those who come before the decision-maker or that the decision-maker may not bring to the resolution of the questions before him or her a fair and unprejudiced mind.

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Failure to afford procedural fairness 2.40

2.40 Failure to afford procedural fairness during the process leading to the making of an administrative decision makes a decision invalid.9 If a member or a decision-maker is concerned that there has been a failure to provide procedural fairness, then legal advice should be obtained.

Correcting common defects in procedural fairness 2.41

2.41 If there is a failure to afford procedural fairness that failure can often be corrected without the need for the member to submit a redress of grievance (ROG) or to make a complaint to an external agency or a court. Common procedural defects and solutions are:

a. Defect. Failure to issue a notice.

Solution. Stop administrative action. Start the process from the beginning by issuing a written notice of the proposed decision.

b. Defect. Failure to disclose or attach statements or other information such as witness statements or reports to be relied upon by the decision-maker. After a notice is issued, new information becomes available which will be taken into account by the decision-maker.

Solution. Stop administrative action and advise the member that specified statements or other information to be relied upon by the decision-maker were omitted or not disclosed. Provide the new or omitted statements or information to the member. Consider granting an extension of time to reply (irrespective of whether the member has sought such an extension).

Exceptions to procedural fairness 2.42

2.42 Not all command or other administrative decisions require procedural fairness as described in this guide. Administrative decisions which do not result in an administrative sanction or which do not involve the exercise of discretion by a decision-maker are not subject to the requirements of procedural fairness. Such decisions include the following:

a. decisions that are trivial, such as refusal of short leave;

9 More specifically, the failure gives rise to grounds which may justify a member bringing a complaint under the ROG system, to the Defence Force Ombudsman, or to other persons or external agencies such as the Federal Court of Australia.

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b. decisions that are routine, such as mid-year and end of year postings;

c. decisions that grant or award a privilege, such as promotion;

d. decisions that are urgent and involve a genuine and real operational imperative (as distinct from an attempt to avoid mere administrative inconvenience), such as command or operational circumstances requiring priority for reasons of speed, security, safety, efficiency or welfare of personnel;

e. decisions that have no adverse effect on a member’s rights or interests; or

f. ‘decisions’ that are imposed by legislation and, therefore, do not involve the exercise of a discretion by a commander or other decision-maker.10

2.43 Urgent or operational decisions. It is acceptable to temporarily waive the requirements for procedural fairness only if there is a genuine and real urgency or operational imperative, such as command or operational situations requiring priority to be given to speed, security, safety, efficiency or welfare of personnel or protection of Defence property. Administrative inconvenience or delays are not an excuse for denying a member his/her entitlement to procedural fairness. Commanders and other appointment holders are required to ensure that members are given procedural fairness in all cases except when there are genuine circumstances that warrant the making of exceptions. Circumstances of the urgency should be recorded by the decision-maker.

2.44 A potential need for action is not enough to waiver the requirement of natural justice; there must be an actual need for urgent action. If genuine urgency exists, the opportunity of an affected person to be heard may be limited, or in exceptional cases, the content of the hearing rule may be reduced ‘almost to nothingness’, so that the duty will not require any notice or hearing before the decision or action taken.11

10 In essence, this relates to circumstances where the relevant legislation simply requires a person to do something, and the person concerned does not in fact have any discretionary power in respect of the requirement.

11 See State of South Australia v Honourable Peter Slipper MP (2004) FCAFC 164 at 113.

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2.45 If exceptions are warranted, then the member should be afforded procedural fairness as soon as the circumstances change. For example, it may be necessary for a commander to make an urgent temporary or interim decision to remove a member from a unit or ship. If it is not proposed to return the member to the unit or ship, as soon as practicable after their removal, a notice or a similar document should be issued in respect of a proposed decision to post the member from the appointment or locality and to take the other steps necessary to satisfy the requirement for procedural fairness.

Annex:A. Notice to show cause format

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NOTICE TO SHOW CAUSE FORMAT A

1. It has been brought to my attention that (state general nature of conduct or inadequate performance eg while you were performing your duties as ........... /you may have exhibited unacceptable conduct/you may have shown a lack of professional judgement/you failed to comply with ...... concerning ..... /you made improper use of public funds/you failed a training course on .......), as detailed below. You are invited to show cause:

a. why I should not be satisfied that the facts and circumstances, as alleged, occurred; and

b. why the (state the appointment of the decision-maker eg Commanding Officer ….. or Director-General Personnel—Air Force) should not decide to (state precise action to be taken eg remove you from ….. course/reduce your rank from ….. to …… with no seniority).

2. Allegation 1. I am informed that:

a. (summaries of relevant facts and circumstances including date, time, place);

b.

c.

3. Allegation 2. I am informed that:

a.

b.

4. These allegations of facts and circumstances are set out in a report/statements by ........................................ titled ................................. dated .......................... A copy of the report/statements is/are attached.

5. Subject to what you might say in any response to this Notice, your alleged conduct may: (insert one or more of the following as appropriate)

a. demonstrate a significant error of judgement/and abuse of your rank and position and the trust placed in you;

b. have been inflammatory and unnecessary;

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c. have been inappropriate and below the standard expected of an (officer or noncommissioned officer) of your rank and position in the (Royal Australian Navy/Australian Army/Royal Australian Air Force);

d. have brought discredit and disrepute on you and your command position, your Service and the Australian Defence Force;

e. have represented a failure to perform your duties at the standard required of an (officer/sailor/soldier/airman or airwoman) in the position of (state position title/description);

f. have undermined the command and authority of your position as ..................;

g. have resulted in a loss of confidence towards you by the personnel under your command or control at ...........;

h. have demonstrated a disregard of Defence Instructions and policy for the proper use or management of public funds;

i. have demonstrated a pattern of behaviour that is unacceptable;

j. have demonstrated that you are unable to effectively perform your duties as an ...................... to the standard expected of an officer with your training and experience.1

6. In making a decision whether to (re-state proposed decision referred to in paragraph 1.b.), ......................., (state the appointment of the decision-maker) ........................... will consider the following material:

a. this Notice to Show Cause;

b. (documents referred to in paragraph 4.);

c. (list and attach any relevant reports/service police reports/statements subject to obligations of confidentiality and security);

1 This list contains typical examples of decisions and is not exhaustive. Consult a legal officer if the list does not clearly address your situation and, generally, with regards to the completion of a Notice to Show Cause.

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d. (list and attach, if necessary, any relevant legislation, subordinate legislation, instructions or policies eg Defence Instructions);

e. any reply and relevant material you submit in response to this Notice to Show Cause; and

f. your service record.

7. You have (insert number) days from the date that this Notice is delivered to you to show cause why (state appointment of decision-maker)should not (state the administrative sanction proposed and referred to in paragraph 1.b.). Your response is to be in writing and any relevant evidence or other information that you wish (state appointment of decision-maker) to consider is to be attached to your response. In your response, you may address the facts, conclusions to be drawn from them and what action, if any, (state appointment of decision-maker) should take. If you wish to have an extension of time for submitting your response to me, you are to contact (state contact officer, eg the officer issuing the notice by stating ‘me’, or add other contact information) directly with the reason you are requesting an extension. You may consult a service legal officer, if one is available, or may have another person assist you in preparing your response.

8. If (state appointment of decision-maker) decides to (state decision proposed and referred to in paragraph 1.b.) a copy of this Notice, together with your response, will be placed permanently on your Service personal history file and may be considered in future decisions relating to your career management. A notation will also be placed on PMKeyS in accordance with the procedures outlined in Defence Instruction (General) ADMIN 10–8—Conduct Reporting and Tracking System.

Dated this day of 20XX

SIGNATURE BLOCK(Initiating Authority)

Enclosure:1. (Attach all reports, statements and other documents to be relied upon by the decision-maker in making a decision on the matter, subject to obligations of confidentiality and security. It is not generally necessary to attach a copy of the member’s service history file)

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CHAPTER 3

DECISION–MAKING 3

INTRODUCTION 3.1

3.1 This chapter deals with the legal criteria to be applied in making a discretionary administrative decision that has adverse consequences for a member, such as the decision to impose an administrative sanction. The criteria for the making of a lawful administrative decision are a separate issue from the merits of the decision. Merits review is discussed separately in chapter 4—‘Review of administrative decisions’. A flow chart on making an administrative decision and writing a statement of reasons for the decision (dealt with in chapter 5—‘Statement of reasons’) is in annex A. When using the flow chart, reference should always be made to the relevant text within this guide.

3.2 The legal criteria for administrative decision-making require that the decision:

a. is made by a person who had authority to make the decision;

b. is reasonable, (or at least not manifestly unreasonable);

c. took into account those factors that the decision-maker was bound to take into account, more commonly referred to as the relevant considerations;

d. disregarded irrelevant considerations;

e. validly exercised a discretion (for example, the decision was not made under dictation, the decision did not involve an inflexible application of policy and the discretion was exercised for the proper purpose and in good faith);

Executive summary

• A decision-maker must follow certain legal criteria in deciding whether to impose an administrative sanction.

• A decision may be unlawful if there is a failure to comply with the legal criteria identified in this chapter.

• Decisions must be based on findings of fact that in turn must be based on evidence that is relevant and logically supportive of the findings.

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f. afforded procedural fairness, (including being made by an impartial and un-biased decision-maker); and

g. was not based on a fact that was not supported by evidence; every finding of fact should be based on evidence that is relevant and logically supports the finding.

3.3 This chapter also provides guidance on obtaining and evaluating evidence for administrative decision-making.

DISCRETIONARY DECISION–MAKING 3.4

3.4 Not all administrative decisions made by commanders or other authorised officers involve the exercise of a discretion. Legislation or policy may not authorise a discretionary decision. For example, in some cases, a commander has no discretion whether or not to initiate administrative action for discharge if the member is unable to maintain individual readiness1 or is found guilty of stealing.2 Whether or not a commander or other officer has the discretion to make certain decisions depends on the terms of the legislation or policy that authorises the making of the decision. In most cases, the authority to exercise discretion is set out in legislation, Defence Instructions and policy documents.

3.5 It is important that a decision-maker is clear about the decision to be made and about the source of the authority for that decision. The most common source of authority is legislation—either an Act of Parliament (a statute) or a subordinate law made by a person or body to whom Parliament has delegated law-making power. Examples of subordinate laws are regulations, statutory rules and ordinances. The first step in exercising a decision-making power is to understand the precise nature, extent and scope of the power. In particular the decision-maker should ensure that they understand the purpose for which the power is being exercised and any boundaries that they must act within.

1 Defence Instruction (General) PERS 36–2—Australian Defence Force Policy on Individual Readiness.

2 Defence Instruction (Army) PERS 67–5—Theft.

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AUTHORITY TO MAKE A DECISION 3.6

3.6 A valid administrative decision can only be made by a person who is expressly or impliedly authorised to do so.3 If the person making the decision does not have proper authority to do so, that decision will be unlawful and invalid and an authorised officer must make a fresh decision on that matter.4

Before making an administrative decision, a decision-maker must ensure that he or she is legally authorised to make the decision. This process may involve reviewing relevant Defence legislation, Defence Instructions, Chief Executive Instructions or obtaining a copy of the most recent instrument of delegation.5

Sources of authority 3.7

3.7 Generally, Federal Government Ministers, the Chief of the Defence Force, Service Chiefs, commanding officers and other appointments derive their authority to make administrative decisions from legislation such as the Defence Act 1903 and the Financial Management and Accountability Act 1997. The authority to make administrative decisions is, however, usually contained in express terms in subordinate legislation such as those issued under sections 58B and 58H of the Defence Act 1903 (such as those relating to conditions and pay), Defence Instructions issued under section 9A of the Defence Act 1903, Defence (Inquiry) Regulations 1985 or in instruments of delegation issued by a Service Chief or by other appointments authorised to do so by legislation.

Delegation 3.8

3.8 In some cases, Defence legislation or Defence Instructions provide express written authority for a specified appointment to delegate some or all of the decision-making authority in relation to a particular matter to another appointment. For example, regulation 81 of the Defence Force Regulations 1952 expressly states that a Service Chief may delegate all or any of their powers under the redress of grievance provisions to Australian Defence Force (ADF) members of specified ranks. If there is no authority to grant a delegation or other implied power to delegate, then there is no lawful

3 Legal advice should be obtained by any one considering making, or acting under, an implied authorisation.

4 Note also, consistent with this rule, that it is not possible for an agency or department (eg Defence) to either rely on or ratify a decision made by an unauthorised official. However, the reverse is not necessarily true, as it may be possible for a member to rely on a decision and seek to have it upheld even if it was not made validly by an authorised decision-maker. Issues of apparent (ostensible) authority may bind the agency or department concerned. Even if a decision per se is not permitted to stand, ie if it was made invalidly, the agency or department concerned may be required to compensate the member affected by the invalid decision for loss and expense incurred by them after the member has relied on the initial invalid decision.

5 In some cases, it may be possible to infer a discretion to make decisions from legislation, for example, the authority inferred as a consequence of a command appointment: seeregulation 43 of the Australian Military Regulations 1927.

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delegation and no legal authority to make the decision. When making a decision, commanders and other personnel should check that they are lawfully authorised to make the decision under a current instrument of delegation. They should never assume they have the legal authority to make a decision just because it comes within their job description or arises in a matter that has been assigned to them.

3.9 A delegation of power will normally be in writing, in the form of an ‘instrument of delegation’ signed by the designated person. The decisions the delegate is authorised to make are usually described in the instrument of delegation by reference to the legislative provisions that create the decision-making power. Generally, if an officer has delegated authority to make certain decisions, that officer cannot further delegate the power to another person. On the other hand, the decision-maker to whom the delegation is granted is still entitled to make a decision on the matter, despite the delegation of authority.

3.10 When power has been delegated both the delegator and the delegate are authorised to exercise that power. The delegator normally decides which decisions to make personally and which to leave to the delegate. There are various ways delegations can be made. A delegation can be made to a named individual or to a person in a specified position or at a particular classification level. A delegate exercises the power on their own behalf. Accordingly, they should sign the decision in their own name/appointment, as a delegate of the designated person. They should not sign ‘for’ or ‘on behalf of’ the designated person: this creates confusion about who is the decision-maker.6

Authorisation 3.11

3.11 In some circumstances, a person who is authorised to exercise a statutory power may also have the express or implied power to authorise another person to exercise that power for and on their behalf. At law, the authorised person does not act on their own behalf, but on behalf of the person who granted the authority. This characteristic is the critical distinction between an authorisation and a delegation because a delegate acts on their own behalf, not ‘on behalf’ of a ‘decision-maker’.

3.12 An authorisation may be appropriate in situations in which there is no express power to delegate authority but in which it is appropriate for another to be authorised to act on behalf of the primary decision-maker. Authorisations generally arise in connection with purely administrative

6 Express and implied power to delegate: It is important always to keep in mind the legal principle that in the absence of an express power to do something, a decision-maker has no power to delegate a discretionary power to another decision-maker. Where there is express power in the statute to delegate, the principle does not apply, but the terms of an express power to delegate may not be exceeded.

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functions. For example, a commanding officer may be required to make decisions on particular matters on the basis of written application from members. The commanding officer would be able to authorise an appropriate person within the unit to accept such applications from members and process them up to the commanding officer for a decision. If the authorised officer signs documents, they must sign them for and on behalf of the person who made the authorisation.7 Authorisations should normally be made in writing. Such authority cannot be passed from the authorised officer to any other person. Unlike a decision which has been made by a delegate the authorising officer may (in most cases) amend, vary or revoke the decision of an authorised officer.

REASONABLE DECISION 3.13

3.13 A decision must be reasonable in all the circumstances of the case. Conversely, a decision will be unlawful if the decision is manifestly unreasonable.8 From a legal perspective, the test for ‘unreasonableness’ is whether the decision is so unreasonable that no reasonable decision-maker could have made that decision in the same circumstances or if looked at objectively, the decision is so devoid of any plausible justification that no reasonable person could have reached that decision. A decision will not, however, be invalid on the grounds that it is ‘unreasonable’ merely because another decision-maker would have made a different decision in the same circumstances.

Sufficient evidence 3.14

3.14 A decision must be supported by evidence. If the evidence to support a decision is insufficient, unreliable or non-existent, then the decision will be invalid on the grounds that it is unreasonable or that there was no evidence to support it (eg if a decision is based solely on rumour, speculation or unsubstantiated information).9

Sufficient reasoning 3.15

3.15 A decision must also be supported by logical reasoning. A decision that is formulated on the basis of an illogical or flawed process of reasoning can also be held to be invalid on the basis of unreasonableness.

7 This legal right to act as a delegated officer’s agent (sometimes referred to as ‘surrogate’) only arises in exceptional circumstances. It should not be relied on unless a decision is to be made at a high level within Defence, and it is impractical for the authorised decision-maker to make a personal decision. The preferable course is to only permit those officers who are authorised to make decisions to do so. In essence, the person or office that is authorised to make the decision is intended to be the person or office that actually makes the decision.

8 Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223, 228.

9 In such a case, the decision would be invalid and set aside.

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Relevant considerations 3.16

3.16 Relevant considerations are considerations which affect the assessment of the probability that a material fact exists. In relation to most administrative decisions there will be a number of factors that a decision-maker is bound to take into account when making that decision. A decision-maker has a legal obligation to consider and take into account all relevant matters and information (‘considerations’). Failure to do so will render a decision unlawful because the decision-maker failed to take into account relevant considerations. These considerations may be prescribed by legislation but are also usually listed in applicable policy documents such as Defence Instructions.

3.17 Decision-makers should also note that, while they are bound to consider certain factors, there may be other considerations that are relevant to the decision that they may choose to take into account. Unless the decision-maker is expressly prevented from doing so under an applicable Defence Instruction,10 the decision-maker should also consider and, as necessary, obtain and have regard to any additional matters or information which they consider relevant to their decision. Taking into account such considerations will not invalidate the decision on the basis that the decision-maker took into account irrelevant considerations. The relevance of matters and information depends on the circumstances of each case having regard to the subject matter, scope and purpose of the proposed decision.

Irrelevant considerations 3.18

3.18 When making a decision, a decision-maker may be presented with information concerning a wide range of matters, some of which will be relevant to the issues under consideration, while others will have no bearing on the matters for decision. The decision-maker must determine which information and matters are relevant and which are irrelevant to their decision. They must then disregard all irrelevant matters and information, and only consider and make their decision having regard to relevant matters and information. Consequently, a decision will not be invalid merely because some of the information presented to the decision-maker is irrelevant. Rather, a decision will be invalid if the decision-maker considers any such irrelevant information or matters when making their decision. File records and a statement of reasons are used to enable a decision-maker to set out those

10 Care should be taken with statements contained in documents described as ‘guidelines’ or ‘policy’, to the effect that certain matters are the sole matters which may be considered by a decision-maker. Unless confined to the exercise of their decision-making discretion by a binding instruction, decision-makers have an overriding obligation when exercising their discretion to consider whether they should step outside such guidelines or policies, and to do so if they consider that a failure to do so would prevent them from considering relevant matters and information, or require them to consider irrelevant matters or information.

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matters and items of information that were presented, and either disregarded, or taken into account and given weight by the decision-maker in making their decision.

Briefing papers 3.19

3.19 In some cases, a decision-maker will make a decision based on information contained in a briefing paper. The briefing paper will generally contain a summary of the facts and reasons relevant to both sides of the issues and make recommendations. In summary, when drafting a briefing paper the following points should be noted:

a. Prejudicial comments. Briefing papers should not contain information that may be prejudicial to the member, or for example, raise new issues or opinions on the versions of events, or make statements about the credibility of witnesses or the member’s response. For example, ‘X’s statement is unbelievable and should be ignored’, or ‘X has shown a poor attitude with help given to him on this matter and has acted in disregard of the requirements of Defence Instructions’. A breach of procedural fairness may occur if a briefing paper contains comments prejudicial to a person and the person has not had an opportunity to respond to them.11 A person is entitled to have an opportunity to respond to those remarks before a decision is made. If a briefing paper contains prejudicial remarks or comments, then a copy of the draft or actual briefing paper should be given to the person with sufficient time allowed for them to reply.

b. Drawing attention to relevant considerations. A briefing paper must contain correct information, draw the attention of the decision-maker to all relevant considerations, attach all relevant submissions, documents or other information, and advise on the ramifications of the proposed decision and the nature of the discretion being exercised.

c. Advice on exercising discretion. A briefing paper may contain a recommendation to the decision-maker on what considerations ought to be taken into account, the weight to be given to those considerations and what decision should be made. However, the briefing paper must also contain a clear statement to the decision-maker advising that the decision-maker must exercise their own discretion in determining relevant considerations, in taking account of what

11 See Kioa v West (1985) 159 CLR 550.

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weight ought to be given to those considerations, and in deciding what decision should be made having regard to the circumstances and merits of the case.12

Further inquiry 3.20

3.20 Following the member’s response and before a final decision is made, it may become apparent there may be other relevant facts and circumstances which should be considered. The following principles are relevant to a decision to initiate a further inquiry:

a. General obligation. There is a general duty or obligation on decision-makers to ensure that steps have been taken to obtain all information that is relevant and reasonably available to them. For example, if fresh facts or new issues are raised that are relevant to the proposed decision, then the decision-maker may be obliged to obtain and consider this information when making a decision.

b. Limitations. The duty to inquire is not unlimited. The duty to inquire applies when other information or materials exist that are relevant to the central issues and proposed decision.13 By contrast, if the evidence supporting the alleged facts and circumstances is reliable, sufficient, relevant and apparently complete then there is no obligation to initiate further inquiries. A decision-maker is under no obligation to make out a case for the member. Similarly, unless there is an additional and clear legal obligation or policy direction to do so, there is no need to institute further inquiries simply because peripheral facts or matters remain unresolved or are in dispute.14

c. Type or form of further inquiry. The inquiry may simply involve a review of a file or a report. In other cases, it may be necessary for a Routine Inquiry or an Inquiry Officer Inquiry to be conducted. Australian Defence Force Publication 06.1.4—Administrative Inquiries Manual, edition 2 provides guidance on the type and conduct of administrative inquiries.

12 Particular care must be taken by decision-makers with briefing papers. It is essential that decision-makers satisfy themselves that the briefing paper, and, any accompanying documents, demonstrate that procedural fairness has occurred and that in adopting any recommendation(s), the decision-maker does so on the basis that the briefing paper contains and has presented the decision-maker with all relevant considerations, does not contain irrelevant considerations and that the recommended decision would not be unreasonable.

13 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170.

14 Foster v Minister for Customs and Justice (2000) HCA 38.

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3.21 Member’s response to new facts or information. If new facts or other information become available that are relevant to the central issues or are likely to be taken into account by the decision-maker, then the new facts or other information must be disclosed to the member. The member is also entitled to be given sufficient time to respond to the new information.15

Exercising discretion 3.22

3.22 Acting under dictation. Legislation or policy may grant a commanding officer or other appointment holder the authority to exercise discretion in making a decision. The existence of discretion will be apparent from the language of the legislation or policy that grants the discretion. For example, language such as ‘X may’, ‘if, in the opinion, of X’ or ‘if X is satisfied’ indicates that a discretion has been granted. If so, the decision-maker is under a legal obligation to exercise the discretion in a genuine and proper manner. In particular, the decision-maker is not to act under direction as to how the discretion should be exercised or as to how a decision should be made because to do so will invalidate the decision. The decision-maker is required to use his or her own judgement as to what is the best decision in the circumstances.

3.23 Adherence to policy. ADF policy creates an expectation on the part of members about how and why decisions will be made. If a decision-maker has to make a discretionary judgement, an ADF policy might set out the factors that should be considered and the relative importance of each factor. A decision-maker should therefore give appropriate weight to policy guidelines. Furthermore, there are important command, operational and discipline reasons for the consistent application of policy.16

15 Except as stated in chapter 2—‘Procedural fairness’, the decision-making process should be suspended pending the member’s submission of a response within the specified response period.

16 Policy may be relied on in reaching a decision if it is consistent with the legislation being administered and the policy accurately reflects and paraphrases the legislation. Courts have regularly acknowledged the value of policy in helping to clarify and facilitate decision-making and the implementation of legislation in a consistent and fair manner.

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3.24 Exceptions to policy. Policy must not be applied inflexibly. A policy can guide decision-making but it must not prevent a decision-maker exercising discretion where such discretion exists. It cannot constrain them to reach a particular decision, nor can it prevent them taking all relevant considerations into account. Particular facts and circumstances may exist that warrant an exception to the manner in which a policy is applied and a departure from policy guidelines. A decision-maker is to analyse and weigh the facts and the merits of a case against the merits of a strict application of policy to ascertain whether an exception to policy is justified in a particular case.17

Affording procedural fairness 3.25

3.25 A failure to afford procedural fairness will result in a decision being invalidated. This failure may be exhibited by failing to grant a proper hearing or the decision-maker being actually or apparently biased. The decision may be invalid for failure to afford procedural fairness, notwithstanding the merits of the case. In some cases, where a failure to afford procedural fairness has been identified before a final decision is made, there may be an opportunity for the error to be corrected and the process to continue. Chapter 2 contains further explanation of principles of procedural fairness and suggestions regarding correction of errors involving failure to afford procedural fairness. Legal advice should be sought if necessary.

EVIDENCE 3.26

3.26 A decision to impose an administrative sanction on a member should only be made when the decision-maker is satisfied that there is sufficient and reliable evidence to support the decision and action proposed. Evidence is information or material that tends to prove or disprove the existence of a fact in issue. Legal advice may be sought on evidentiary issues and a decision-maker should bear in mind the guidance contained in this publication.

17 Policy is only one element of proper administrative decision-making. It must not obstruct the facts of a case being considered. A decision-maker should not make their decision inflexibly or by automatically applying a policy without evaluating the merits of the case to ensure that the policy fits the facts of each case. Legislation is binding, policy is generally not. Decision-makers who are responsible for making decisions are also legally responsible for evaluating the merits of the decision in each case. Refusing to make an exception, relying on a policy in a statement of reasons (but without setting out the facts to which the policy was applied), confusing ‘consistency’ with fairness or valid decision-making, are all areas where errors may be made by decision-makers.

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Standard of proof 3.27

3.27 Whether evidence is sufficient to prove a fact must be determined in accordance with a standard. Courts apply two standards of proof—the criminal standard and the civil standard. In criminal proceedings before a court the offence charged must be proved ‘beyond reasonable doubt’. In civil proceedings a fact must be proved on ‘the balance of probabilities’; a fact is proved to that standard if the court is satisfied it is more likely than not that the fact is true.

3.28 Generally, it is the civil standard that applies in administrative fact finding. There is, however, an important qualification: in court proceedings there are usually two parties who can put forward conflicting evidence, and the court must decide which facts are more likely than not to be true. In administrative decision-making the decision-maker is responsible for determining which facts are more likely than not to be true. The question to be decided is whether, on the basis of reliable evidence, the decision-maker is reasonably satisfied that a particular fact is more likely than not to be true.

3.29 If a fact in issue involves serious wrongdoing, is inherently unlikely or has grave consequences, better evidence might be required to establish the fact. For example, it would be unsound to make a finding based solely on uncorroborated hearsay evidence that a person forged a document.18

Rules of evidence 3.30

3.30 An administrative decision-maker is not bound by the rules of evidence that apply in the criminal courts but these rules can be referred to for guidance when evaluating evidence. Nonetheless, a decision must be based on sufficient and reliable information. If a fact or piece of evidence is relevant to the issue and it is reasonably practicable to get and consider that evidence, then it must be considered. A decision-maker is required to exercise care in considering the evidence available before making a decision. The following paragraphs describe the various forms of evidence, some basic legal classifications of evidence, and provide guidance on the weight that may be placed upon each type.

18 Please refer to the Directorate of Military Administrative Law Update 2/2008 at http://intranet.defence.gov.au/dsg/sites/LegalResources/docs/dmal_2_2008.pdf for further discussion.

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Forms of evidence 3.31

3.31 Evidence may include oral or written evidence given by witnesses, documentary evidence such as a letter, or real (physical) evidence, such as a weapon:

a. Oral evidence. When evidence is provided orally—as during an interview or telephone call—the decision-maker should make a file note or written record of interview at the time or soon afterwards, while the memory is fresh. The particulars recorded should be the name, position/title and contact details of the member spoken to, the date, time and place of the conversation, and the main pieces of information provided. Information provided by the member affected, including any admissions, is evidence and may be considered by a decision-maker. It may be worth noting the demeanor of the witness and the tone of the conversation (eg angry, abrupt, heated, tearful).

b. Witness statements. Witness statements are usually contained in inquiry reports that form part of the evidence used to support proposed administrative sanctions. Such statements can be persuasive in that they are often taken shortly after the relevant incident, however, it does not take account of a person’s demeanour when they make a statement or answer questions. Further, the written statement has not been tested by another party. A member who gives a statement might only be aware of part of the facts and not all relevant questions may have been put to them in drafting the statement. For this reason, a decision-maker must be careful in apportioning greater weight to a specific witness statement. A good way of evaluating a witness statement is to examine its consistency with other evidence. A statement is more likely to be true if it accords with known facts, the documentary evidence, or other evidence. The decision-maker should also note whether the witness’s statement is internally consistent and whether it accords with what the witness may have said on other occasions.

c. Documentary evidence. Documentary evidence may be found in materials such as reports, emails, official and personal correspondence, and hand-written notes. While documentary evidence may appear to be more reliable than oral evidence, a decision-maker should remember that all documents are prepared by individuals and may contain errors. If a person produces an original document as evidence, the decision-maker should take a photocopy of it for their file and

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make a note that it is a true copy of the original. Evidence in the form of emails and electronic documents should be printed and kept on file.

Establishing facts 3.32

3.32 A fact is material if the existence or non existence of the fact affects the decision. As well as material facts there are ‘relevant facts’ affecting of the probability that a material fact exists. Relevant facts are identified by breaking down a material fact into sub-questions. For example, legislation might require a decision-maker to determine whether a member has incurred a loss as a result of their own carelessness. To make a finding about the material fact, the decision-maker needs to make findings about relevant facts such as the nature and circumstances of the event that caused the loss and the conduct of the member and others involved.19 The factual findings should form a chain of reasoning that leads logically from relevant facts through material facts to the decision. Once all material and relevant facts have been identified, the decision-maker can distinguish between the ‘known facts’ (facts that have already been established) and ‘facts in issue’ (facts about which it is necessary to make a finding on the basis of the evidence). Known facts are factual information that is accepted by the decision-maker and by the member or members who will be directly affected by the decision. This might include, for example, the member’s personal particulars on a form that are accepted as correct. A fact in issue is one about which there is disagreement or insufficient evidence to satisfy the decision-maker that the fact exists.

Classification of evidence 3.33

3.33 The question of whether evidence should be considered, and if so, the weight to be afforded to evidence, is guided by the manner in which the evidence is classified.

3.34 Relevance. If a particular fact or piece of evidence is relevant to the issues to be decided, then it must be considered. A decision-maker should always seek to obtain evidence that is relevant to the facts in issue and disregard (give no weight to) information that is irrelevant.

3.35 Best evidence. Once evidence is determined to be relevant, the next question is whether the evidence is the best evidence available. The following paragraphs describe certain types of evidence and outlines some factors which should influence the decision-maker’s view of the evidence before him or her.

19 A finding of fact will sometimes be established directly by the evidence—for example, a person’s age or security clearance. At other times a material fact might be inferred from other facts; a finding that a person was in a ‘de facto’ relationship could be inferred from things such as living arrangements and personal relationships. When a finding of fact is inferred, the reasons for decision should set out the primary facts and the process of inference.

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3.36 Hearsay. One type of evidence that can be received is hearsay evidence—a report by one person of what another person has said about the facts alleged. In evaluating hearsay evidence, the decision-maker should take into account that such evidence is generally regarded as less reliable than evidence given by someone who has first-hand knowledge of the facts alleged.

3.37 Corroboration. A decision-maker should determine if additional information is required to corroborate a witness statement and ensure the accuracy and reliability of the evidence. This can be done by obtaining other witness statements or documentary evidence. If other evidence demonstrates substantial agreement among witnesses or otherwise supports certain facts and circumstances, the decision-maker is entitled to give greater weight to those facts in making a decision.

3.38 Inferential reasoning. Some facts can be logically inferred, or deducted, from other facts on the basis of strong probability, without the need for direct evidence. If, for example, the known facts are that a member was deployed to a country overseas in 2005 and was stationed in Australia in 2007, it could be inferred that the person travelled to Australia at some time between those dates. Many gaps in direct evidence are filled by inferences. If the inference might be adverse to a member who will be affected by a decision, that inference should first be put to that member, so that they have a chance to respond. If, for example, a decision-maker infers from the evidence that a member caused loss or injury to another deliberately rather than accidentally, they should notify the member that they propose to draw the inference and give the member an opportunity to refute it. They can do this by asking them direct questions about their intent when they acted, or failed to act. This does not preclude a decision-maker from taking account of facts that are part of ordinary experience or common knowledge—for example, that each person’s handwriting is unique. Service knowledge and experience can also be used to draw inferences in a similar manner (eg one can infer that a person of a certain rank has a certain level of experience and service knowledge).

Weighing credibility of evidence 3.39

3.39 Decision-makers should use common sense and military experience to determine the credibility and reliability of witness statements and other evidence. When there are conflicting versions of a factual matter it does not necessarily follow that someone is lying: it is possible for people to perceive and remember events differently. A finding that a person is untruthful or not credible is potentially damaging to them and should be avoided unless necessary. It is generally better to focus on where the truth lies, rather than on who is to be believed. If a person has lied about one thing it does not necessarily follow that everything they say should be disbelieved. A

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decision-maker must consider why the person lied or was mistaken and whether the same reason might cause them to lie or be mistaken about something else. For example, a member might lie about certain things in order to avoid a loss of face but be truthful about other things that do not arouse the same motivations. The best way of probing inconsistencies is to ask questions. If a decision-maker has evidence that contradicts the witness, they should put the substance of that evidence to the witness—or, if that is not possible, to the affected member who is relying on the witness’ statement—and offer them an opportunity to explain. Conversely, the fact that a witness is considered to be honest does not necessarily lead to the conclusion that their evidence can automatically be relied upon. The evidence may be unreliable for a number of reasons, eg the events might have occurred quickly when the person was under personal or physical stress.

3.40 Acceptance or rejection of evidence. There is no obligation to accept or reject everything that a particular witness says. The whole of the evidence must be assessed and a decision made as to whether all or only part of the evidence is accepted or not.

3.41 Making a decision. The totality of the evidence constitutes the material upon which findings of fact must be based and a decision is made. The evidence must be viewed objectively and conclusions drawn from it. In assessing the value and weight of the evidence, the decision-maker may use service knowledge and experience.

Notification of the decision 3.42

3.42 The form of notification of an adverse decision depends on:

a. the requirements of specific Defence Instructions or other policies, and

b. the seriousness of the adverse decision.

3.43 Notification may involve a formal written notice and/or a personal interview. In most cases, a minute or other official correspondence is necessary. The notification should clearly state the decision made, any further avenues of review and should also include the reasons for the decision, which outlines the findings of material facts, the evidence on which the findings are based, and the evaluation of the evidence. If there is a conflict in the evidence, the decision-maker should explain why they prefer one account over another. It is unwise to simply say ‘I prefer the evidence of member X’, or ‘I disbelieved Y’. Instead, they might say, for example, that the account provided by member X was supported by particular documentary evidence or that person Y had not been consistent in their account.

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Reasons for decisions 3.44

3.44 Chapter 5 provides guidance on preparing reasons for decisions.

Annex:A. Flow chart—making an administrative decision and writing a

statement of reasons for the decision

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FLOW CHART—MAKING AN ADMINISTRATIVE DECISION AND WRITING A STATEMENT OF

REASONS FOR THE DECISION A

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CHAPTER 4

REVIEW OF ADMINISTRATIVE DECISIONS 4

INTRODUCTION 4.1

4.1 There are various mechanisms for Australian Defence Force (ADF) members to seek review of administrative decisions. In the first instance, members should seek resolution of any complaints at the lowest possible level through the normal chain of command and administrative arrangements. Early resolution of complaints is an important factor in the maintenance of morale and the efficiency of the ADF.

LEGAL AND MERITS REVIEWS 4.2

4.2 A legal review concerns the lawfulness of the decision-making process. The legal requirements for procedural fairness are described in chapter 2—‘Procedural fairness’ and other legal criteria for decision-making are described in chapter 3—‘Decision–making’. A merits review is different from legal review. A merits review focuses on whether the correct or preferable decision has been made based on the individual circumstances of each case. Some forms of review only consider the legality of a decision (for example, judicial review by a court generally is a legal review which focuses on the legality of the decision, rather than the merits of the decision). In a legal review, the focus is on the procedure followed and whether any legal errors have been made. If a legal error has been made, the decision will have to be remade. In a merits review, the reviewer puts themselves in the same position as the original decision-maker and considers the matter afresh. The merits reviewer may therefore come to a different conclusion even if there has been no legal error by the original decision-maker. Any internal review should take into account both the legal and merits aspects of an administrative decision. Where for example a Service Chief is reviewing a redress of grievance (ROG) he or she conducts both a legal review and a merits review. For the purpose of a legal review, a legal officer can provide more specific advice on legal aspects of the decision.

Executive summary

• administrative decisions are generally reviewable.

• there are two types of review: legal and merits. Some decisions can have both reviews conducted, while others may only be legally reviewed.

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Internal review 4.3

4.3 Internal review involves fresh consideration of the legal aspects and merits of the decision. The original decision-maker or new authorised decision-maker may cancel, confirm or amend the original decision or make a new decision. This type of review may occur if requested verbally or in writing by the member or another person or agency and does not require the member to submit a formal complaint, such as a ROG or to initiate other formal internal or external administrative action. If practicable, commanding officers and other decision-makers should take the opportunity to review administrative action or decisions that are within their authority to initiate or make and ensure that there are no procedural or other defects in the decision-making. This may avoid subsequent corrective action to amend or invalidate decisions by officers superior in command, or other authorised decision-makers and delegates, and avoid unnecessary delays and diversion of resources.

4.4 Fairness and Resolution Branch. Fairness and Resolution Branch facilitates the resolution of workplace conflicts and disputes and provides advice on complaint management. All complaints should be resolved in a timely manner at the lowest appropriate level and internal review is an important method of assisting to do this. The branch also manages the formal complaints system which can be accessed when informal or administrative processes fail. The branch has policy responsibilities for equity, diversity, privacy and the integrated complaint handling system; it is also responsible for managing and providing advice on a broad range of complaint types (unacceptable behaviour, ROG, Review of Actions, privacy breaches, the Australian Human Rights Commission (AHRC) and the Commonwealth/Defence Force Ombudsman (DFO)). The Fairness and Resolution Branch has established Fairness and Resolution Centres in each State/Territory to provide advice and assistance to all Defence employees on the management and resolution of workplace conflict, unacceptable behaviour and other complaints within Defence.

4.5 Redress of grievance. Where a member is not satisfied that a complaint has been resolved through the normal administrative processes, part 15 of Defence Force Regulations 1952 and Defence Instruction (General) (DI(G)) PERS 34–1—Redress of Grievance—Tri-Service procedures, provide a formal grievance procedure. A member may submit a complaint in writing to his or her commanding officer or, in some cases, the commanding officer’s superior officer, about certain matters relating to their service. Oversight of the ROG system is vested in the Directorate of Complaint Resolution. Interim Policy DEFGRAM No 2/2010—Redress of Grievance—Revised Process issued 17 March 2010, outlines the new arrangements for ROG procedures, which will be incorporated into a revised version of DI(G) PERS 34–1. Complaints are to be inquired into as soon as

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reasonably practicable (regulation 77). It is an offence to dissuade a member from lodging a complaint (regulation 92). These matters include complaints about legal or procedural aspects of the decision-making process, such as a breach of procedural fairness, or about the decision itself, such as a failure to follow the legal requirements for decision-making and/or the merits of the decision.

4.6 Inspector-General of the Australian Defence Force. Reporting directly to Chief of the Defence Force (CDF), the role of the Inspector-General of the Australian Defence Force (IGADF) is to provide CDF with internal audit and review of the military justice system independent of the ordinary chain of command. This includes both Defence Force discipline and the Defence Inquiries system. The IGADF will provide an avenue by which any failure of military justice may be examined and exposed, not so as to supplant the existing processes of review by the provision of individual remedies, but in order to make sure that review and remedy are available and that systemic causes of injustice (if they arise) are eliminated. Refer to DI(G) ADMIN 61–1—Inspector-General of the Australian Defence Force—role, functions and responsibilities for further guidance.

4.7 Commanders and other authorised decision-makers should attempt to resolve complaints about decision-making processes and decisions without the requirement for a member to seek review by ROG, IGADF or external review by the DFO, other external agencies or the courts.

External review 4.8

4.8 External review mechanisms include the DFO, AHRC and judicial review through the courts.

4.9 Defence Force Ombudsman. Part IIA of the Ombudsman Act 1976gives the Commonwealth Ombudsman the additional function of DFO.

4.10 Serving members of the ADF, the spouses and dependants of members or former members and other people on behalf of a member or former member (if they have the member’s permission) have the right to complain to the DFO.

4.11 Serving members should first submit a ROG prior to submitting a complaint to the DFO. However, the DFO can investigate complaints about unreasonable delays in the ROG system, or complaints from members who have not been informed about the progress of their complaint at any time during the internal ROG process.

4.12 Members of the public also have the right to submit a complaint about matters relating to Defence, through the Commonwealth Ombudsman.

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4.13 The DFO investigates complaints from members of the ADF relating to, or arising from, past or present service. A member can ask the DFO to investigate any administrative action taken by the ADF, or other Commonwealth agency, that relates to service in the ADF and which is troubling to the member or the member’s family.

4.14 The DFO will not normally investigate a complaint while it is being considered by a Minister, the ADF, another Commonwealth agency, a court, or a tribunal or review body, like the Administrative Appeals Tribunal. The DFO can investigate complaints about unreasonable delays in the ROG system, or complaints from members who have not been informed about the progress of their complaints every 60 days.

4.15 Under the Ombudsman Act 1976 the DFO cannot investigate:

a. a grant or refusal to grant individual honours or awards related to bravery or meritorious service,

b. disciplinary proceedings,

c. actions of a government minister or a judge,

d. actions of State or local governments,

e. actions of private individuals or companies, or

f. actions of a few Commonwealth agencies outside the DFO jurisdiction.

4.16 A serving member with a complaint about a matter affecting their service is normally expected to seek to resolve the complaint through established Service channels, including the ROG system, before approaching the DFO see DI(G) PERS 34–3—Inquiries and investigations by the Commonwealth Ombudsman and the Defence Force Ombudsman. A member who is not satisfied with the outcome of a ROG that has been referred to the Service Chief, or, in the case of officers and warrant officers, to CDF, may ask the DFO to review the complaint. Management initiated retirement provisions of the Defence (Personnel) Regulations 2002 prevent alteration of the service conditions in relation to an officer of the ADF, while the DFO is investigating a complaint (regulation 80).

4.17 Australian Human Rights Commission. A member may also be entitled to make a complaint to the AHRC. The Human Rights and Equal Opportunity Commission Act 1986 details the structure of the Commission and provides the Commission with the authority to investigate any complaint of discrimination in employment. Refer to DI(G) PERS 34–2—Complaints of discrimination and harassment through the Australian Human Rights Commission for further guidance.

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4.18 Administrative Appeals Tribunal and Judicial Review. Additionally a member may have a right of review by the Administrative Appeals Tribunal or judicial review1 through such courts as the Federal Court and High Court.

Alternative dispute resolution 4.19

4.19 Alternative dispute resolution is used to complement existing command and management processes. Alternative dispute resolution includes mediation, workplace conference and facilitated negotiation. Further information and advice can be obtained from the Directorate of Alternative Dispute Resolutions and Equity by email at ADR@defence.gov.au or visit their intranet website at http://intranet.defence.gov.au/fr/.

Advice 4.20

4.20 A member may obtain legal advice on the various options for review and, in particular, in respect of any applications for further review of administrative sanctions and decisions by an external agency, tribunal or court.2

1 Judicial review is ‘the determination by courts of the legality of exercises of power by administrators … Judicial review is confined to review of questions of law and does not extend to review of the merits of the administrative action’. See Butterworths Australian Legal Dictionary 1997, p 649.

2 Subject to the legislative basis for the administrative decision which is made, members may have additional rights to seek external review of administrative decisions made by authorised decision-makers in Defence. In some specific instances (particularly relating to Service entitlements—eg Defence Service Home Loans, etc) external decisions may be reviewed via external ‘merits review’ tribunals set up under relevant Commonwealth Legislation. These tribunals include, for example, the Administrative Appeals Tribunal and Veterans’ Review Board. The primary avenue, however, for a member who is dissatisfied with an administrative decision made within Defence is to the Federal Court pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977.

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CHAPTER 5

STATEMENT OF REASONS 5

INTRODUCTION 5.1

5.1 Although the Administrative Decisions (Judicial Review) Act 1977creates an obligation to provide statements of reasons for decisions reviewable under the Act, an exemption is granted in respect of decisions in connection with personnel management (including recruitment, promotion and organisation in the Australian Defence Force (ADF), decisions relating to particular members and decisions in relation to redresses of grievance (ROG)).

5.2 Notwithstanding legislative exemptions, written notification to a member of an administrative decision should contain sufficient information to enable a member to have a clear understanding of the findings of fact and the weight given to those facts in making the decision. If the written notification of the decision provides sufficient information about the reasons for the decision, a further or formal statement of reasons will not normally be required. A formal separate statement of reasons is usually requested when the decision-maker provides insufficient or no reasons for a decision.

PURPOSE AND PROCESS 5.3

Purpose 5.3

5.3 A statement of reasons is provided in order to explain how a decision was reached and enable the member to make an informed decision about what further action, if any, could be taken.

5.4 Describing the reasoning process can also help decision-makers think more carefully about their task and be more careful in their decision-making.

5.5 Bodies that review ADF decisions—courts, tribunals, ombudsmen and other oversight agencies—pay close attention to reasons for decisions when deciding whether a decision should be set aside, a new decision made, or

Executive summary

• Written notification to a member of an administrative decision should contain sufficient information to enable a member to have a clear understanding of the findings of facts and the weight given to those facts in making a decision.

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other remedial action taken. A decision-maker may be criticised if the reasons for a decision are deficient or do not provide a full or accurate account of why the decision was made.

5.6 Providing reasons for a decision should not be treated as an obligation that is separate from other principles of good decision-making.

Requests for statements of reasons 5.7

5.7 A decision-maker should provide a statement of reasons for administrative decisions when requested by:

a. a member who is affected by an administrative sanction, if insufficient reasons for the decision have been given to the member;

b. a commanding officer, in the course of an investigation and review of an administrative decision in accordance with ROG procedures;

c. the Directorate of Complaint Resolution, in the course of its inquiries and preparation of case materials for review by a Chief of Service, delegate or other person authorised to make decisions in accordance with ROG procedures, or in its liaison function with the Australian Human Rights Commission or Defence Force Ombudsman;

d. an officer superior in command to a commanding officer provided that the request is made for a proper purpose and with proper authority and where considerations of privacy and security permit this;

e. any officer or other person who is authorised to make a decision on the issue and is conducting a review of the decision at the request of the member;

f. a Routine Inquiry officer appointed to conduct an inquiry in accordance with Australian Defence Force Publication (ADFP) 06.1.4—Administrative Inquiries Manual, edition 2; or

g. an Inquiry Officer inquiry or a Board or Commission of Inquiry appointed under the Defence (Inquiry) Regulations 1985 and in accordance with ADFP 06.1.4, edition 2.

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Format and style 5.8

5.8 There is no standard format for a statement of reasons. In most cases, a minute format will be appropriate. Its format, style and length may vary according to the nature of the decision and the intended recipient.

5.9 A statement of reasons is meant to inform. It should be written in a style that makes it intelligible to the person requesting it. Use plain English, keep sentences short and to the point, avoid generalities and vague terms, and avoid technical or legal terms and abbreviations that are not likely to be readily understood by the member concerned. Develop a logical structure, and use headings to guide the way.

Content 5.10

5.10 The detail and length of reasons for a decision can vary in length depending on the seriousness and complexity of the issues, and the amount of information involved. Reasons must contain the following:

a. the decision,

b. the legislation and or policy relied upon giving power to make the decision,

c. the findings on material facts,

d. the evidence or other material on which those findings are based, and

e. the reasons for the decision.

The decision 5.11

5.11 Reasons should refer to the legislation/subordinate legislation and/or policy documents (eg Defence Instruction, Instrument of Delegation) that authorised the decision. It is better to quote, rather than summarise, the relevant statutory or policy provisions and then note which aspects need to be resolved or answered, as well as the decision reached on those matters.

5.12 Paraphrasing the legislation or policy is unwise because the meaning might be inadvertently changed.

5.13 The name, title and appointment of the decision-maker should be made clear, as well as that person’s legal authority to make the decision. If the decision-maker is a delegate, this should be noted.

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Findings on material facts 5.14

5.14 Reasons must contain the findings on all material facts. If a finding is not set out, a review agency might conclude that it was not taken into account and that the decision is invalid as a consequence.

5.15 A material fact is a fact that can affect the outcome of a decision. Consequently, the findings on material facts are those that support the decision, based on the consideration of all relevant evidence.

5.16 The legislation might expressly provide that a fact is material—for example, by making the exercise of a power depend on the fact’s existence or non-existence. Material facts can also be implied by the subject matter or scope of the legislation.

5.17 A finding of fact will sometimes be established directly by the evidence—for example, a person’s age or security clearance. However, when a finding of fact is inferred, the reasons for decision should set out the primary facts and the process of inference.

The evidence on which the findings were based 5.18

5.18 A statement of reasons must refer to the evidence on which each material finding of fact is based. It is not sufficient to simply list all the documents that were considered in reaching the decision. The statement should identify the evidence that was considered relevant, credible and significant in relation to each material finding of fact.

5.19 When referring to evidence it is not necessary to quote it or provide a copy, provided the evidence can be readily identified. The evidence might be identified by stating its source or nature, whichever is more intelligible and informative—for example, ‘paragraph 9 of the witness statement of Wing Commander X dated 20 June 08’.

5.20 Statements of reasons should demonstrate that each finding of fact is rationally based on evidence. If the evidence was conflicting, the statement should say which evidence was preferred and why.

The reasons for the decision 5.21

5.21 The actual reasons relied upon by the decision-maker at the time of making the decision must be stated. Every decision should be amenable to logical explanation. The statement must detail all steps in the reasoning process that led to the decision, linking the facts to the decision. The statement should enable a reader to understand exactly how the decision was reached; they should not have to guess at any gaps.

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5.22 A statement of reasons should refer to any recommendations that were before the decision-maker and relevant parts of reports that were considered in making the decision. If the decision was made by adopting the recommendation or report, this should be explained and the reasons for doing so given. In order to provide an accurate record of the reasoning process, it might also be necessary to note any recommendation or report that was rejected and the reasons for this. If adopting a report, the decision-maker should be careful to ensure that the report contains sufficient information to satisfy the requirements for a statement of reasons—namely, the findings on material questions of fact, a reference to the evidence or other material to support those findings, and the reasons for the decision.

5.23 A statement of reasons should also refer to any submission or evidence by a member and considered in making the decision. If a submission from a member is not referred to in the statement there is a risk that a court will conclude it was a relevant matter that was not considered.

5.24 A statement should also inform a person of their appeal rights.

Handling of confidential or sensitive information 5.25

5.25 Information that has been supplied in confidence, such as a ‘dob in letter’, does need not be revealed to the potentially affected member. Instead, the decision-maker may be required to notify the member of the substance of the allegations made in the letter and to ask him or her to respond to those allegations.

Legal advice 5.26

5.26 Decision-makers may consult a service legal officer for advice on when a statement of reasons is required.

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ACRONYMS AND ABBREVIATIONSADF Australian Defence ForceADDP Australian Defence Doctrine PublicationADFP Australian Defence Force PublicationAHRC Australian Human Rights Commission

CR complaint resolution

DFDA Defence Force Discipline Act 1982DFO Defence Force OmbudsmanDI(G) Defence Instruction (General)DMAL Director of Military Administrative LawDRN Defence Restricted NetworkDWS Defence Whistleblower Scheme

IGADF Inspector-General of the Australian Defence Force

JDL joint doctrine libraryJR Judicial ReviewJWDTC Joint Warfare Doctrine and Training Centre

RAAF Royal Australian Air ForceRAN Royal Australian NavyROG redress of grievance