Government problems

Ross Woods, 2013, 14 (rev.)

 

If mistreated by a government department, the first thing to do is to ask, in a reasonable tone of voice, what is the actual problem. Many public servants, but certainly not all, will explain it to you if you are honestly trying to understand and are not trying to circumvent the rules. Some, of course, don't know the details of the rules and can't answer the more difficult questions. And some members of the public won't accept a good explanation if they don't get what they want. If it becomes an argument, you have weakened your chances of getting useful information.

 
The public servant's viewpoint

Consider the viewpoint of the public servant.

• Like anyone offering a service to the general public, lots of people come asking for something to which they aren't entitled. They create all sorts of reasons why they should have it, blame the official for withholding their imaginary "rights," and not infrequently get angry and irrational.
• Public servants often have to use a set of non-committal comments that they know is safe from implying any promise they can't deliver on.
• They can only execute the legislation and policies of the government of the day within a set of rather complicated rules. They don't necessarily have much freedom to give special treatment.
• Just because something is a priority to you, it is not necessarily a priority to them.
• Government departments are not subject to consumer law. Oddly enough, it can be quite legal for them to cheat you.

A public servant might be pleasant and friendly, but that does not mean they will help you. In some cases, they are overloaded and simply overlook or delay the follow-up that they indicated to you. In a few cases, most notably the police, being friendly and nice is simply a tactic to make you more willing to divulge information that is to their advantage and your detriment.

 
Your written communications

Write on paper. Some agencies take a paper letter more seriously than an email. Although email is now usually accepted as a written form, some recipients will often ignore a hastily-written, poorly thought-through email.

State your case clearly in a polite, cool-headed, factual and respectful tone. You will get further faster if you are reasonable and not angry, so don't send your first draft. Your letter should be well-written, with good layout, good grammar and accurate spelling. Present the details of your side of the story, even if it is only one person, and avoid being libellous. If you should supply longer reports of details, put them in enclosures so that you can keep the main text succinct and avoid rambling.

It is quite likely they will want to phone you so that they don't have to commit to an answer in writing, so don't give them your phone number. You want an answer in writing.

 
Early stage responses

Check what the act of parliament actually says. It might be bad legislation and you might disagree with it, but it determines what is and is not legal. Public servants are especially afraid of being seen to be in non-compliance with legislation or statuary requirements.

Write a letter of enquiry, stating your case clearly in a respectful tone, and give them a reasonable date by which you expect an answer. In terms of natural justice, you have a right to a timely reply, after which they may be deemed to have ignored your case.

If you can't get a satisfactory response from the department, you can lodge a detailed formal complaint, clearly documenting what actually happened in an impartial, factual tone. However, the complaints sections in some departments are internal, so they do not provide an independent review of complaints, although they will probably tell you that they are independent.

If they have reason to believe that you present a higher risk of non-compliance, they can put you on a list so all future services fall under graeater scrutiny. This is actually good practice on their part if they have good reason to do so, but it could result in slightly slower service and more checking in the future.

 
Difficult cases

Some government departments can give responses that are grossly unfair:

• The far-reaching disclaimers in some government letters make them ineffective; they might not commit to anything.
• Government departments sometimes will fix the problem only if you sign acceptance of a gag from informing any third party of your side of the story. Make sure that a third party somewhere already knows the full details of your side of the story, even if it is only one person. That is, the facts need to be somewhere in the public domain. The Privacy Act gags them from any disclosure of your case.
• As a condition of getting a resolution, they might require that you agree that they made no error of any kind and that they will not be liable for any losses that you incur through their (now non-existent) fault. This is extortionate and unfair, and you should seek legal advice before signing anything to this effect. (If a class action wins a case for compensation, you will be ineligible.)
• It is unlikely that you will ever be able to talk to the person who makes the actual decision. You will only get to talk to errand boys, which gives them a delay mechanism. But they will want to talk to you (probably on their schedule, not yours) and get commitments from you.
• Government departments have deeper pockets than you, so they can afford to stall for as long as it takes for you to run out of time and money to pursue the case further. It's a simple case of justice delayed is justice denied.
• Some government departments can interpret legislation and regulations to suit themselves because they know that most people won't take the matter further. However, a tribunal or court could overturn their interpretation.

If you don't get an acceptable result, you have the following options:

• You can appeal to the relevant administrative tribunal. You might need to be able to show that the department did not follow procedure or denied you natural justice. Tribunals are normally independent, so your chances of getting a fairer answer are better.
• You can go to the Ombudsman, who is independent of the department's internal processes. He/she can't actually reverse any decision, but has huge powers of investigation and review, which civil servants hate. However, you should beware of some industry ombudmen, as some of them are actually employees of private organizations.
• You can write to the Minister. The Minister will then send a "Ministerial", which is a letter to the relevant government department asking for an explanation. Public servants hate these letters and must always give them priority. This avenue is not always a solution; although public servants cannot afford to say a flat lie, some will say nearly anything to protect themselves. Besides, even if they want to help you, Ministers usually have many other policital considerations, such as the presures of their own political agendas, publicity, other stakeholders, and the implications of setting a precendent.
• You can complain to your member of parliament; some of them are very helpful, especially if they see your cause to their political advantage.
• You can complain to relevant lobby groups. These might or might not help. Whoever it is will check the facts before advocating for you, and might only take you on if it is within their interests to do so. If many other people are in the same situation as you, it might strengthen your case.
• You can engage a lawyer. They vary greatly in how much value for money you get.
• The press is the last resort. It might get instant results, but it might make your lot much more difficult.