Working definition of maladministration

Section 26 of the Ombudsman Act 1974 lists the following types of conduct that we can report about:

• contrary to law
• unreasonable
• unjust
• oppressive
• improperly discriminatory
• in accordance with any law or established practice but the law or practice is, or may be, unreasonable, unjust, oppressive or improperly discriminatory
• based wholly or partly on improper motives, irrelevant grounds or irrelevant consideration
• based wholly or partly on a mistake of law or mistake of fact
• conduct for which reasons should be given but are not given
• otherwise wrong

The working definition of each of the key terms follows.

 Contrary to law (s.26(1)(a))

• Decisions or actions contrary to:
  • an Act or Regulation
  • the common law
  • a lawful and reasonable order from a person or body authorised to make such an order
• Failure to comply with:
  • obligations under an Act or Regulation
  • the common law
  • a legally binding document or contract
• Continuation of practices or procedures which the courts have found to be unlawful
• Decisions or actions ultra vires, ie not authorised (the decision-maker had no power to make the decision or to do the act)
• Breach of natural justice/procedural fairness, including:
  • failure to give or inadequate notice
  • failure to give or inadequate opportunity to be heard
  • bias
• Incorrect
  • interpretation of the law
  • application of the law
• Legal requirements or procedures not observed
• Improper exercise of a delegated power:
  • decision or action not authorised by delegation
  • fettered discretion/acting under the direction or at the behest of another, ie acting under dictation
• Criminal or corrupt conduct
• Decisions or actions induced or affected by fraud
• Acceptance of bribes or secret commissions
• Unauthorised disclosure of confidential/secret/private information
• Breach of trust or fiduciary responsibilities

 Unreasonable (s.26(1)(b))

• Decisions or actions:
  • inconsistent with adopted guidelines or policy and that inconsistency is not adequately explained
  • inconsistent with other decisions or actions which involve similar facts or circumstances
  • made or taken without obvious relationship to the facts or circumstances
  • not justified by any evidence
  • partial, unfair or inequitable
  • made or taken by a person with a conflict of interests
  • arbitrary
  • so unreasonable that no reasonable person could so decide or act (ie irrational)
  • unconscionable
  • based on information that is factually in error or misinterpreted
  • unreasonably delayed
• Inconsistent decisions or actions not adequately explained
• Policy applied inflexibly without regard to the merits of individual cases
• Application of procedure which fails to achieve the purpose for which it is intended
• Relevant considerations not adequately taken into account
• Irrelevant considerations taken into account
• Important facts omitted from reports or deliberations, or ignored
• Denial of procedural fairness, including inadequate:
  • notice of proposed action, decision or hearing
  • advice as to rights
  • reasons for decisions or actions
  • consultation
  • opportunity to be heard
• Failure to give notice of rights where reasonable to do so
• Wrong, inaccurate or misleading advice leading to detriment, whether inadvertent or deliberate
• Failure to apply an Act, Regulation or the common law
• Means used not reasonably proportional to ends to be achieved (ie excessive use of authority) including restraints imposed upon persons or property that are not necessary to preserve and protect rights of others
• Abuse of power, eg use of power for unauthorised purpose
• Failure to rectify identified mistakes, errors, oversights or improprieties
• Failure to appreciate impact on the public or an individual, or giving undue weight to agency’s convenience, interests.
• Failure to properly comprehend complaint or to respond appropriately to complaint
• Breach of trust
• Failure to properly investigate
• Negligence or the absence of proper care and attention

 Unjust (s.26(1)(b))

• Decisions or actions:
  • not justified by any evidence
  • partial, unfair or inequitable
  • made or taken by a person with a conflict of interests
  • arbitrary
  • so unreasonable that no reasonable person could so decide or act (ie irrational)
  • unconscionable
• Refusal of otherwise valid claims based on minor procedural defects
• Means used not reasonably proportional to ends to be achieved (ie excessive use of authority)
• Abuse of power
• Negligence or the absence of proper care and attention
• Unfair or inequitable application of law so that burden or benefit does not reach all those to whom it is intended to apply

 Oppressive (s.26(1)(b))

• Decision or actions:
  • unconscionable
  • punitive, harsh, cruel or offensive
• Means used not reasonably proportional to ends to be achieved (ie excessive use of authority)
• Abuse of power/discretionary authority
• Imposition of unreasonable preconditions to the provision of a legal entitlement
• Intimidation or harassment
• Use of superior position or knowledge to place a person at an unreasonable disadvantage or to obtain compliance with wishes in respect of an otherwise unrelated matter

 Improperly discriminatory (s.26(1)(b))

• Inconsistent application of laws, policies, etc. when there is no reasonable, justifiable or appropriate reason to do so
• Inconsistent application of policies or practices
• Distinctions applied not authorised by law, or failure to make a distinction which is authorised or required by law
• Failure to perform duties impartially and equitably

 Law or practice unreasonable, unjust, oppressive or improperly discriminatory (s.26(1)(c))

• Application of law or practice does or will produce a result that is unreasonable, unjust, or oppressive.

 Improper motives (s.26(1)(d))

• Decisions or actions:
  • for a purpose other than that for which the power was conferred, ie the intent of a law, policy or procedure is ignored or disregarded in order to achieve a particular outcome
  • motivated by favouritism or personal animosity
  • for personal advantage
  • made or taken by a person with a conflict of interests
• Misuse of confidential information to obtain improper advantage
• Bad faith
• Dishonesty
• Seeking or accepting gifts or benefits in connection with the performance of official duties
• Misuse of public property, official services or facilities
• Favouritism or promotion of personal objectives other than those which merit and equity dictate

 Irrelevant grounds/ considerations (s.26(1)(d))

• Relevant considerations not adequately taken into account
• Irrelevant considerations taken into account
• Policy applied inflexibly without regard to merits of the case
• Abuse of power
• Exercise of discretionary power at the direction or at the behest of another, ie acting under ‘dictation’
• Actions influenced by irrelevant remarks or other inappropriate information recorded on files

 Mistake of law (s.26(1)(e))

• Mistake of law:
  • incorrect interpretation of the law
  • incorrect application of the law
• Ignorance of the law Note: A mistake of law can be distinguished from acting contrary to the law as the former is an attempt to follow the law but is based on a mistake.

 Mistake of fact (s.26(1)(e))

• Decisions or actions based on information that is factually in error or misinterpreted
• Important facts omitted from reports or deliberations, or ignored
• Failure to properly investigate
• Failure to properly listen to complainant’s version of the facts
• Failure to read file or other documentation correctly

 Failure to give reasons (s.26(1)(f))

• Statement of reasons not given:
  • when required by law
  • when it is otherwise reasonable to do so
• Statement of reasons given but inadequate because:
  • all relevant issues are not addresed
  • the relevant criteria on which the decision is based are not stated
  • the relevant findings or material questions of fact are not stated
  • the reasons are not comprehensible to the likely recipient

 Otherwise wrong (s.26(1)(g))

• Negligent conduct
• Result of decisions or actions is uncertain
• Previously unavailable or unknown facts become known which cast doubt on the correctness of original decisions or actions
• Failure to give effect to lawful government or agency policy
• Rudeness or lack of courtesy
• Failure to give accurate, frank, impartial, complete and/or timely advice
• Failure to honour commitments
• The use of an inappropriate manner in dealing with the public
• Knowingly sending members of the public on a fruitless enquiry
• Failure to return phone calls and correspondence
• Failure to respond to reasonable requests
• Failure to meet acceptable or industry standards for public administration, good judgment, integrity and the like.