Q4: Are there any government policies or guidelines that apply to this decision?
There will often be policy or guidelines in place to guide the decision-maker, especially in situations where decision-makers may have to deal with a large number of cases.
Policies and guidelines can be useful to decision-makers by encouraging consistency and avoiding successful challenges on the basis of inconsistency. However, policy documents or guidelines do not have the same force as legislation. Decision-makers should ask whether there are any policies or guidelines that apply to the process and decision before them and apply them in the context of the relevant statutory framework. Officials supporting decision-makers should be aware of and understand all relevant policies.
A failure to consider, or misinterpreting, policy or guidelines may be seen as a failure to take into account a relevant factor; an error of law; unreasonableness; causing a decision-maker to go beyond their power; or a breach of a legitimate expectation that you will apply policy or guidelines. These points are discussed in more detail in Steps 2 and 3 of this Guide.
Decision-makers must ensure that the policy or guidelines are read as a whole, rather than by reference to selected passages. The extent to which policy or guidelines have been relied on, or not relied on, should be made clear in the decision.
While policies are helpful, decision-makers must also ensure they consider whether the merits of the individual case justify a departure from the policy.
Are there any facts in this case that justify a different approach being taken than is required by the departmental policy, manual or guideline?
- Policy documents and guidelines should be applied sensibly according to the purpose of the policy and the natural meaning of the language. Policy must not be inconsistent with the statute under which the policy is being applied (for example, policy may not override obligations under legislation to consider specific matters).
- While it is lawful to follow a policy or guidelines, the decision-maker must consider the merits of each case, and whether the facts justify a departure from the policy.
- This doesn’t mean an exception to policy or guidelines must be made, but that the decision-maker should remain open to persuasion that an exception should be made.
- If a decision-maker does depart from policy, reasons should be documented and provided
Policies may also create additional process obligations.
If a policy says that the government will act in a certain way, or follow a particular policy, it may also be that consultation with affected parties is required before departing from that process.