MEDIA RELEASE
Wednesday, 18 November 2009
Workable law considers the exception, not just the rule
Commonwealth Ombudsman Professor John McMillan today invited submissions on an
issues paper dealing with unintended consequences when legislation establishing
government programs is implemented.
‘Even with the best will in the world, policy makers cannot predict and provide for all
combinations of circumstances that might arise,’ Professor McMillan said. ‘Despite good
intentions, governments will sometimes develop legislation that results in unforseen,
unfair or even harsh consequences. Mistakes will also occur in applying the legislation.
‘As legislation becomes more complex and detailed, and agencies have less “room to
move” to accommodate people in unusual situations, we need to consider safety net
mechanisms that will ensure deserving individuals are not disadvantaged.’
Professor McMillan said that in recent times tightly drafted or rigid legislation had been
responsible for severe, unexpected or inequitable outcomes such as:
people becoming ineligible for grants because they were not able to meet
application cut-off dates, even if deadlines were missed due to wrong advice
visa holders becoming unlawful citizens and being held in immigration detention
social security recipients having their entitlements or benefits reduced or
cancelled.
‘All agencies, regardless of the limitations in the legislation they administer, have at least
three options available to them to overcome a defective decision or unwelcome
outcome—administrative self-correction or ‘workarounds’; discretionary compensation
payments; and debt waiver and write-off powers,’ he said.
‘But I’m not convinced that these options are enough.’
Some of the questions being explored by the Ombudsman include:
What measures do agencies use when an error has been made or the application
of legislation has harsh and unforeseen consequences?
Do agencies monitor the administration of legislation to assess whether a safety
net power in the legislation should be used?
What limitations or safeguards should be placed on the exercise of power under a
safety net provision?
Should agencies be able to vary a decision or action to comply with a
recommendation of the Ombudsman?
Do agencies do enough to make people aware of relevant safety net discretions?
Professor McMillan is conducting targeted consultations with key stakeholders on these
and related matters.
His issues paper, Mistakes and unintended consequences—a safety net approach,
Interested parties are invited to make written submissions by 29 January 2010.
__________________________________
Media contact:
Fiona Skivington, Director Public Affairs
0408 861 803
NEWS 
