Discretionary powers are permissive, not mandatory. They are powers granted either under statute or delegation which do not impose a duty on the decision-maker to exercise them or to exercise them in a particular way. Within certain constraints, decision-makers are able to choose whether and/or how to exercise discretionary powers.
No public official has an unfettered discretionary power. Public officials must exercise discretionary powers in accordance with any applicable legal requirements, reasonably, impartially and avoiding oppression or unnecessary injury.
Agencies should adopt policies and procedures which set out the general approach to be followed in at least each major area of activity for which they are responsible. This should ensure that the agency’s powers are exercised consistently from case to case, unless the merits of any particular case justify a different approach.
Administrative decisions often include the exercise of discretion. Discretion exists when the decision-maker has the power to make a choice about whether to act or not act, to approve or not approve, or to approve with conditions. The role of the decision-maker is to make a judgement taking into account all relevant information.
Powers to act and to exercise discretion
For public sector decision-making, legislation generally provides the lawful authority for action to be taken and for decisions to be made. Public sector decision-making may be undertaken:
As part of fulfilling responsibilities to ensure the efficient and effective management and performance of a public authority, eg, under the general public sector legislation; or
As part of taking action or making decisions under agency or department-specific legislation relating to the services delivered by the public authority.
Relevant administrative law principles
In exercising discretionary powers, various principles of administrative law require public officials to:
- use discretionary powers in good faith and for a proper purpose (ie, honestly and only within the scope of and for the purpose for which the power was given)
- base their decision on logically probative material (ie, logical reasons, information that proves the issues in question, relevant and reliable evidence)
- consider only relevant considerations and not consider irrelevant considerations
- give adequate weight to a matter of great importance but not give excessive weight to a relevant factor of no great importance
- exercise their discretion independently and not act under the dictation or at the behest of any third person or body
- give proper, genuine and realistic consideration to the merits of the particular case, and not apply policy inflexibly, and
- observe the basic rules of procedural fairness (ie, natural justice).
Other principles of administrative law preclude public officials from:
- making decisions in matters in which they have an actual or reasonably perceived conflict of interests
- Improperly fettering their own discretion (or that of future decision-makers) by, for example, adopting a policy that prescribes decision-making in certain circumstances
- exercising a discretion in a way that is so unreasonable that no reasonable person would have exercised the power in that way
- exercising a discretionary power in such a way that the result is uncertain
- acting in a way that is biased or conveys a reasonable perception of bias
- making decisions that are arbitrary, vague or fanciful
- refusing to exercise a discretionary power in circumstances where the decision-maker is under a duty to do so, or
- unreasonably delaying the making of a decision that the decision-maker is under a duty to make.
It is a serious matter for public officials to ignore valid advice or valid considerations, particularly for the purposes of avoiding discomfort or embarrassment on the part of the government, agency or decision-maker.
Policies and practices to guide the exercise of discretionary power
Not every situation demands a policy, and policies are not a panacea capable of properly addressing all circumstances. However, policies are an important means of guiding decision-makers in exercising discretionary powers appropriately, consistently and fairly.
Policies should include an objective and the criteria to be used in decision-making to help ensure that:
- all relevant legal requirements are complied with
- all relevant factors are considered
- there is consistency in decision-making, and
- the decision-making process is transparent and accountable.
As a matter of principle, it is unacceptable for an agency to adopt and implement a policy that adversely affects, or could adversely affect, the rights or interests of any member of the public where the existence or content of the policy is kept secret or the policy document is not available for inspection and purchase on request.
Policies adopted by agencies should be communicated to relevant staff and members of the public. In this regard, s.15 of the Freedom of Information Act requires that agencies must ensure each of their policy documents are available for inspection and purchase by members of the public.
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