Topic 3 Pt 2: Turning your policy into law

3.8   Are you requiring government officials to make decisions?

3.8.1  What is administrative law?

Administrative law is the area of law relating to government decisions. Essentially, administrative law ensures that administrative decisions made by government officials (including ministers) are consistent, fair and accountable. This might include providing people affected by a decision with a right to seek a review of that decision, either internally within the agency, by another agency or through the courts.

For example, Part 7 of the Immigration Act 2010 (Vanuatu), sets out the appeal process following a decision by the Principal Immigration Officer:

Administrative law is important when developing policy and subsequent legislation and you should consider which, if any, of the administrative law principles below should form part of your reform. The next few pages provide further detail on each of the below principles.

3.8.2  Appropriate level of decision making and procedural fairness

When developing legislation that provides a government official with a decision making power, the responsibilities of the person exercising the discretion should be proportionate, or comparable, to the nature of the decision being made. The decision making power should also be delegated to a level at which the person it is vested in is equipped and appropriately trained to make the required decision.

For example, in relation to decisions which might affect a large portion of the population or which could impact on a country’s national interest, the appropriate decision-maker would most likely be the relevant minister. Where decisions are less serious or affect only particular people, the appropriate decision maker might be a particular level of public servant. This is illustrated in the Vanuatu example above, where the decision relates to the refusal, grant or cancellation of a visa, which could potentially have a large impact on someone’s life and livelihood. Given the importance of this decision it can only be made by the Principle Immigration Officer, which is reviewable by the minister.

Decision makers must act in a manner which affords procedural fairness (or natural justice) to people affected by the decision. Broadly, procedural fairness requires that the decision-maker be, and appear to be, free from bias and that the person be given a fair opportunity to provide any relevant information to the decision maker before the decision is made affecting them. Procedural fairness may also require that decisions be explained in a way that people can easily understand.

3.8.3  Discretion in decision-making

In many cases, decision makers will have discretionary powers concerning the decision, meaning the decision maker has a choice about whether to do something or, for example, whether to approve or not approve. For example, see section 9(1) of the Fisheries Act 1973 (Solomon Islands):

The use of the word ‘may’ in this example demonstrates that the Principal Licencing Officer has a discretion to issue a licence or not.

In these cases, you should consider whether your legislation needs to provide a decision maker with any guidance on how to exercise this discretionary power. This can help guide decision makers and ensure that discretionary powers are not too broad and are applied consistently.

Where the discretionary power being granted is broad it is especially helpful to include guidance and examples of relevant factors the decision maker should take into account.

3.8.4  Delegation of decision-making power

It is common for legislation to allow a decision making power to be delegated from the minister or secretary to a public servant. For example, see section 5(7) of the Marine Resources Act 2006 (Tuvalu):

In these cases, the issues you will need to consider are similar to those discussed above in topic 3.8.2 about who should make the decision. Where a decision involves a limited exercise of discretion, it may be appropriate for more junior officers to make the decision. Similarly, where a provision will give rise to a high volume of decisions, it is not usually appropriate for senior officers to take on the workload. It may be more efficient for a larger number of junior officers to make primary decisions.

Delegations of power should only be as wide as necessary. Decisions also don’t have to be wholly delegated. For example, the provisions may be structured so that decisions can be delegated in most cases, but more significant decisions can be made by the minister personally.

3.8.5  Merits review

If a person is not happy with a decision they may be able to seek a review of that decision, and you may need to include this right to seek a review in your legislation. In administrative law there are two different types of review: merits review and judicial review.

Merits review is a reconsideration of the decision within the same legislative framework as the original decision. Essentially the decision is made again, but this time by someone other than the original decision maker. All of the same discretions and powers which applied to the original decision maker will apply to the person reviewing the decision. As well as ensuring the decision is made correctly in a particular instance, merits review assists to achieve a broader goal of improving the consistency of decision makers.

Examples of situations where it may be appropriate to include merits review include decisions affecting national sovereignty (for example, decisions relating to who is admitted to enter the country) and decisions that are fundamental powers of a government (for example, the issuing of passports).

Generally, any administrative decision that will, or is likely to, adversely affect the interests of a person should be subject to merits review, unless there are particular reasons to exclude it.

Two types of decisions are generally not appropriate for merits review:

• decisions which do not apply to an individual factual scenario, but which apply to the public more generally, and
• decisions which automatically occur following a specific set of criteria (i.e. where there is essentially no discretion in decision-making).

You will also need to consider which body or official would be appropriate to undertake this merits review. If an existing body or official has similar functions you should consider whether that person or body can undertake merits review. Merits reviews may be conducted internally (for example, by a more senior official than the original decision maker reviewing the matter) or externally (such as by a tribunal).

The possible outcomes of a merits review are usually that:

• the original decision is upheld;
• the original decision is varied;
• the original decision is set aside and a new decision is substituted; or
• the matter is returned to the original decision maker to reconsider with specific directions.

3.8.6  Judicial review

Judicial review is not the re-hearing of the particular merits of a decision, but rather a review of whether the decision-maker used the correct legal reasoning or followed the required legal processes.

Judicial review is carried out by a court, but it is a more limited right than a right of appeal. If the court finds that a decision was made unlawfully, then generally the decision will be referred back to the decision maker for reconsideration within the correct legal framework.

Many Pacific Island countries will have some right of judicial review of administrative decisions already available, either under their Constitutions or through common law rights. You need to understand what administrative review rights might be available in your country, and keep that in mind when the legislation is being drafted.

3.9   Are you introducing criminal offences?

3.9.1  Is a criminal offence necessary?

A criminal offence is the ultimate sanction for a breach of the law, with serious consequences involved for a person if convicted. Making an action subject to criminal law may provide police (or other law enforcement agencies) with powers to search and arrest people, and to search and seize property. Additionally, a person subject to a criminal conviction may experience a loss of personal freedom (i.e. through imprisonment or home or weekend detention) or a loss of property (i.e. through confiscation of assets), as well as the stigma associated with a criminal conviction which can affect employment, travel and standing within the community.

Before introducing a criminal offence you should consider the range of alternatives and work out whether any of these would effectively deter the conduct you are trying to prevent.

Some alternatives to consider include:

• penalty notices (see topic 3.9.6);
• civil penalties, which are usually monetary penalties (though can include injunctions, banning orders or compensation) imposed outside of the usual criminal process; and
• enforceable undertakings and administrative sanctions, such as licence cancellation.

There are a number of factors to consider when deciding whether to impose a criminal sanction. These include:

• the nature of the conduct to be deterred;
• the circumstances surrounding the proposed provision;
• whether the proposed provision fits into the overall legislative scheme;
• whether the conduct causes serious harm to other people;
• whether the conduct so seriously contravenes fundamental values as to be harmful to society;
• whether it is justified to use criminal enforcement powers in investigating the conduct;
• whether similar conduct is regulated in the proposed legislative scheme or other legislation;
• if the conduct has been regulated for some time, how effective have existing provisions been at deterring the undesired behaviour; and
• the extent to which the level and type of penalty that may provide deterrence.

3.9.2  Framing criminal offences

If you decide that a criminal offence is necessary, offences must be defined clearly so that people know what is and is not prohibited. It is important that the offence be clearly described and that it be rationally connected with the harm targeted by the policy objective. An ambiguous statement of the offence may lead to inconsistent enforcement of the law, uncertain application, unintended changes in behaviour or failure to address the conduct that the offence was intended to prohibit.

As part of your policy development process you must decide what the elements of that offence will be. The following topics provide an overview of what you’ll need to consider when developing a criminal offence. However, it is recommended that you seek legal advice as to what best suits your reform.

In general, criminal offences are made up of physical elements (the act) and fault elements (the state of mind).

In order to prove a person is guilty of an offence, the prosecution will generally need to prove that both of these elements existed. The standard the prosecution must meet in proving these elements is beyond reasonable doubt. This means that the facts of the case have been proven to such an extent that there is no other conclusion to draw other than the defendant’s guilt.

There may be general criminal legislation in your country that governs how criminal offences will operate. This may include ‘default’ physical and fault elements that will apply if you do not specify them in your legislation. See the below example from Crimes Act 2016 (Nauru):

If your country has a provision similar to section 22 of Nauru’s Crimes Act 2016 and you do not want the stated physical and fault elements to apply to your legislation, you will need to include specific provisions in your legislation to cover these matters.

Physical Elements

Physical elements can be:

Most of the time, offences are committed by the accused doing a positive act. For example, picking up a knife and striking a person with it.

However, some offences occur if an accused does not do something they have a legal duty to do. This is known as an ‘omission’.

For example, families, in particular parents, have a legal duty to care for their children. A person who has taken responsibility to look after a sick or disabled person has a legal duty to look after that person. Similarly, teachers, doctors, and law enforcement officers all have a duty to look after people in their care. A failure to fulfil these legal duties may constitute a criminal offence.

Fault elements

The fault elements of an offence are concerned with the accused’s state of mind at the time the physical elements of the offence occur. For a defendant to be found guilty, the prosecution must prove each physical element and the corresponding fault element beyond reasonable doubt. Proof of guilt is not established unless the physical and fault elements occur at the same time.

The standard fault elements are:

3.9.3  Retrospectivity

A key matter to consider in relation to the commencement of legislation is the principle against retrospective commencements. A retrospective commencement is when legislation is applied to conduct that has occurred in the past. The principle against retrospectivity is that laws should not impose liability for acts (or omissions) which were not considered unlawful at the time they occurred.

While retrospective application of legislation does occasionally occur, it should never create a detriment to anyone other than the government. For example, retrospective legislation may be enacted in order for the government to make payments, but should not be enacted if it has a detrimental result for members of the general public in relation to things that occurred in the past – particularly for criminal offences, as a person cannot be expected to be held criminally responsible for conduct which was not an offence at the time it was carried out.

3.9.4  Setting the penalty

When developing an offence, you will need to consider what the penalty should be. Each offence should have a separate maximum penalty. The maximum needs to be high enough to provide a deterrent effect and also sufficient scope for a court to punish the most serious cases, including repeat offences. It also needs to appropriately reflect the seriousness of the offence relative to other offences and penalties.

It can be helpful to look at similar offences within your country, to ensure the penalty for any new offence fits within the existing penalty scale. It can also be helpful to look to other countries to get a sense of how similar offences are treated.

It is also helpful to think about the broader criminal justice framework when setting a penalty. For example, a Magistrate’s Court will most likely be limited in which matters it can hear based on the length of imprisonment attached to offences. If the Magistrate’s Court is the most frequently sitting court, it may be worth keeping penalties below this level to ensure that less serious offences can be dealt with quickly. While practical matters such as this will be relevant, a penalty should always be based on the seriousness of the offence.

Something else to consider is whether a fine or community based sentence should be prescribed as an alternative to imprisonment. This gives the court some flexibility if the circumstances are appropriate. The ratio between imprisonment and fines and other sentences will need to be determined. Again, looking at how this has been treated in existing legislation can be helpful.

3.9.5  Defences

When introducing a criminal offence you must consider what defences may be relevant and how they should apply. A defence may already exist that applies. For example, defences existing in criminal legislation may apply to all offences in a country. Alternatively, general defences may need to be extended in their application or offence-specific defences may need to be included.

3.9.6  Infringement/penalty notices

Infringement or penalty notices provide an alternative to prosecution for an offence or litigation of a civil matter. Generally, these notices are used for minor offences, especially ones that are committed frequently, and give the recipient the option to either pay a fine or elect to have the matter heard in court. In addition, infringement notices should also be limited to offences where a breach is readily assessable by an enforcement officer based on physical elements, rather than mental elements. A common example is minor traffic offences.

Frequently infringement notice schemes are included in subordinate legislation, such as regulations, so that fine amounts can be easily adjusted. Where this is the case, remember that the primary legislation must provide a power for making such a scheme (see topic 1.2.4 – Subordinate legislation).

Some things to think about when you are preparing to include an infringement notice scheme in legislation include:

• who should be authorised to issue a notice;
• what amount should be payable for each offence in the scheme (including amounts for a natural person and a corporation);
• the process for withdrawing a notice;
• the process for paying the notice; and
• what should be included in the notice itself, including:
  • a unique identifier for each notice;
  • the name of the person (or some other way to identify the offender) to whom the notice is to be issued;
  • the authorised officer who has issued the notice;
  • the alleged offence and the details of the offence (e.g. time, nature and place of the offence);
  • the amount to be paid;
  • the option to attend court instead of paying the fine; and
  • the method for seeking to have the notice withdrawn.

3.10 Are you creating regulatory powers?

Regulatory powers are the coercive and enforcement powers used by government agencies to ensure individuals and industry comply with legislative requirements.

This includes things like:

• monitoring powers, which can be used to monitor compliance with provisions of an Act and to monitor whether information given to the government is correct;
• investigation powers, which can be used to gather material that relates to the contravention of an offence or civil penalty provision;
• the power to apply to a court for civil penalty orders and injunctions; and
• the power to issue infringement notices.

If you are considering including such powers in legislation, you should also think about what safeguards and guidelines need to accompany that power. For example, if you are introducing a power to execute a warrant of some kind, you should also think about who can issue the warrant, who can exercise it, how the warrant should be executed, what powers that person has while executing the warrant and what rights the person who is the subject of the warrant has.

3.11 Are you creating a new legislative entity?

3.11.1 Is a new entity necessary?

Occasionally, legislative reform will include the creation of a new entity to implement the purpose of the legislative scheme.

An example of a statutory agency can be seen in the Tertiary Education and Skills Authority Act 2016 (Solomon Islands). Under section 6 of this Act:

The purpose of the Solomon Islands Tertiary Education and Skills Authority is provided in section 5:

Before creating a statutory agency through a legislative reform, there are a number of things you should consider.

First, is a new agency really needed? Statutory agencies still carry out a governmental function, so you should think about whether the function can be carried out by an existing government department or body or a collaboration of existing agencies. Having the desired activity carried out by an already existing government structure can avoid unnecessary costs, and can take advantage of existing resources and knowledge.

Generally, a statutory agency is only necessary when the function is more effectively performed outside of the government. This might be because the particular function requires a level of independence from government or because there is a specific need to establish a separate legal entity.

When deciding whether to establish a new statutory body, you should check what legislation may already exist which would be common to all statutory agencies. For example, there may be financial management legislation or legislation concerning staff which applies.

As the legislation is being developed, there are many legal and other issues to consider, some of which are discussed in this part.

3.11.2 Functions

Any legislation to create a new entity must clearly outline the purpose and functions of that new entity.

A lack of clarity about the purpose of the entity can result in ineffective governance structures that inhibit the efficiency and performance of the body tasked with undertaking the activity. Only when the purpose of an entity is clear can the direction be set for the entity to achieve its objectives.

Issues to consider include what the intended outcome of the entity’s activities will be, and whether there will be any restrictions on the entity’s activities.

An example of the functions of a statutory agency is section 38 of the Leadership Code Act (Tuvalu):

3.11.3 Powers

It is critical to be clear about what powers the entity can exercise.

For example, section 7 of the Primary Producer’s Authority Act 2018 (Vanuatu) provides:

This section limits the powers of the authority both to the functions that the Authority can perform and to things that are necessary and convenient to those functions.

3.11.4 Governance structure

The legislation will need to address the entity’s governance arrangements. This will include issues such as:

• whether there will be a governing board and, if so, what will the authority and functions of the board be?
• how will board members be appointed, terminated and how long will their length of service be?
• will there be a chief executive or chairperson of the board? How will this be decided and what will the terms be?

An example of a governance structure can be seen in section 4 of the Financial Supervisory Commission Act 2003 (Cook Islands):

3.11.5 Staffing

How will the entity be staffed? Will employees be considered public servants, in which case will existing public service legislation and conditions apply?

If this is not the case, then how will staff be engaged and how will their conditions be determined? How will other human resource related issues be dealt with, such as misconduct and termination?

A further employment consideration is whether, and how, to implement things like delegations and authorisations. Who in the organisation will be able to perform what functions and how can these functions be delegated to others?

3.11.6 Financial accountability

While statutory entities generally have more independence than a government department, a statutory agency is still using public money and must be held equally as accountable.

As such, any enabling legislation will need to specify how the entity and its employees spend and receive money, if that is not already dealt with in other public financial management legislation. You will need to consider issues like:

• how the entity’s financial resources will be managed?
• how the entity can enter into contracts and hold property?
• what kind of financial reporting will be required?
• what the approval process will be for spending money and making payments?

For example, under section 26 of the Financial Supervisory Commission Act 2003 (Cook Islands):

3.11.7 Reporting

In addition to financial reporting, what other forms of accountability are necessary? For example, should the entity be required to report to the minister or a relevant department or the Parliament more broadly? Should there be a requirement to produce and make annual reports publicly available? You may also need to think about the role other offices may play, such as the Ombudsman or Auditor-General, in regard to freedom of information or other accountability laws.

For example, under section 28 of the Financial Supervisory Commission Act 2003 (Cook Islands):