Decisions, Decisions - What Should I Consider?

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Published by Preston Law on 04/09/2020

Today people expect organisations will operate consistently and fairly and that there are systems throughout organisations to ensure that this happens. Good administrative decision-making is integral in this process.

Good decision-making lies at the heart of good administration. Even a decision about a seemingly simple matter can have a serious impact on the community. It is important that organisation have systems in place to support fair and consistent decision-making.

Every day, local governments make administrative decisions, including decisions in relation to possible breaches of various Local Government Acts. Councils should implement systems to ensure the integrity of its decision-making process, and ultimately the final and operative decision.

This article outlines some of the issues and steps to be taken when conducting investigations and making decisions.   

The Process

Step 1: Assess the complaint/ investigation

Not every complaint requires investigation. The majority of concerns raised by complainants will be able to be resolved at an informal level or through other processes such as mediation. Many complaints involve communication problems or misunderstandings that can be resolved by discussion between the parties.

Some investigations are subject to particular legislative requirements. The assessment of the complaint and determination of the nature of the investigation must be undertaken within the relevant framework and having regard to the particular requirements.

Even at this early stage the relevant staff should consider whether any person involved in the investigation, or preliminary assessment has a conflict of interest:

  • A conflict of interest occurs when private interests interfere or appear to interfere with official duties. It may arise from financial or personal interests.  There can be an actual, perceived or potential conflict of interest.
  • All investigations must be conducted without bias, in an impartial and objective manner. No-one with an actual or perceived conflict of interest should be appointed or remain the investigator.
  • A decision-maker should not be involved in a decision where a conflict of interest exists, even if the decision-maker has the proper delegation or authority.
  • The more serious the complaint, the more important it is that the investigator be someone as independent of the events being investigated as possible.
  • A conflict of interest should be recorded and reported to management to be resolved in the public interest.
  • Ensure you have addressed this issue at an early stage in the investigation process.

Step 2: Determine the nature of the investigation

This includes determining whether it is about:

  • policies, procedures and practices, or
  • conduct of individuals.

The nature of the investigation has a bearing on the powers necessary to conduct it, the resources needed, whether any authorisation may be required, and the nature of the possible outcome.

At this stage, a decision should be made as to whether the complaint needs to be investigated internally or should be referred externally.

Step 3: Determine powers of investigation

The effectiveness of an investigation is influenced by the available powers. Investigators must be aware of their power to require witnesses to talk, to obtain information from people about policies, procedures and practices, and to access relevant records.

If lack of sufficient powers is an issue, the investigator should consider referring the investigation to some other person or body with the necessary powers.

Step 4: Develop the investigation framework

It is critical that one person be responsible for the conduct of the investigation, and thus for establishing the framework for the investigation.

This framework may include:

  • the appropriate authorisation to conduct the investigation;
  • terms of reference which establish a focus and set limits on the investigation; and
  • an investigation plan.

Step 5: Gather evidence

The task of an investigator is to prove or disprove, if possible, any matter or matters of fact raised by a complaint.

The investigator does this by gathering evidence. In an investigation, the main sources of evidence are:

  • oral evidence (recollections);
  • documentary evidence (records);
  • expert evidence (technical advice); and
  • site inspection.

Although only one witness may be required to prove any fact or set of facts, additional evidence in the form of corroboration is desirable.

If legal proceedings might arise at some future stage, evidence should be gathered in accordance with the rules of evidence. A basic awareness of these rules is useful to ensure that the evidence obtained is the best available and, where applicable, will be admissible in any subsequent legal proceedings that may arise.

Step 6: Apply the appropriate standard of proof

In disciplinary and administrative investigations, allegations must be proved “on the balance of probabilities”. It must be more probable than not that the allegations are made out.

In criminal proceedings, allegations must be proved “beyond reasonable doubt”.There has been much case law on how this phrase is defined. But the words simply mean what they say.

The presumption of innocence underpins the rules about proving most crimes. Council as the prosecutor has the burden of proof.

Step 7: Record and store information appropriately

Investigators must maintain a central investigation file, which is a complete record of the investigation, documenting every step, including all discussions, phone calls, interviews, decisions and conclusions made during the course of the investigation. This file must be stored securely to prevent unauthorised access, damage or alteration, and to maintain confidentiality.

Step 8: Prepare the investigation report

This should be done at the conclusion of the investigation and may be required. The report may be subject to outside scrutiny. Ensure you have observed procedural fairness in preparing your final report.

Step 9: Close the investigation

Complete and file all paperwork. It is best practice to conduct a review of the investigation, preferably done by someone more experienced than the investigator and independent from them. This enables the investigation to be assessed and may highlight some improvements in investigative mechanisms for future reference.

Observe Procedural Fairness

Due process must be observed in every investigation. Procedural fairness requires you to:

  • inform people against whose interests a decision may be made of the substance of any allegations against them or grounds for adverse comment in respect of them, and give them an opportunity to respond;
  • provide all parties with a reasonable opportunity to put their case, whether in writing, at a hearing or otherwise;
  • consider all submissions carefully;
  • make reasonable inquiries or investigations before making a decision;
  • take into account all relevant factors and no irrelevant factors;
  • ensure that no person decides a case in which they have a direct interest;
  • act fairly and without bias; and
  • conduct the investigation without undue delay.

This purpose of the is document is to encourage local governments to review their decision-making procedures and ensure all decision-makers, particularly authorised persons, are aware of the issues and processes that underpin good decision making.

Should you require any further information please do not hesitate to contact Preston Law’s Local Government team.

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