Key Points: The Commonwealth Ombudsman has called for improvements in
the delivery of the Australian Government's scheme of
compensation for defective administration. That call may well
herald changes for the future.
As we reported in our
May 2007 edition, revised guidance was issued on the
implementation of discretionary compensation mechanisms available
to the Commonwealth, including the Scheme for Compensation for
Detriment caused by Defective Administration (the CDDA Scheme).
The Commonwealth Ombudsman has now conducted an own-motion
investigation into the administration of decision-making under the
The Ombudsman has called for improvements to the compensation of
persons affected by deficient government advice, information or
practices. It may be that the Ombudsman's call will form a
blue-print for changes to the CDDA Scheme. In the meantime, the Putting things right: compensating for
defective administration report contains a number of
valuable lessons for agencies against which compensation may be
sought, particularly those with external clients.
What is the CDDA Scheme?
The CDDA Scheme is an administrative scheme, designed to cover
losses (economic, non-economic and property losses), due to
administrative failure, where no legal liability to compensate
Decisions under the Scheme are made:
at the discretion of the decision-maker who the claim is
on the basis that there is a moral, rather than a legal,
obligation to the claimant.
The Scheme applies where there occurs:
a specific and unreasonable lapse in complying with existing
an unreasonable failure to institute appropriate administrative
an unreasonable failure to give proper advice, within an
official's power and knowledge to give; or
advice that was, in all the circumstances, incorrect or
Broadly, the CDDA Scheme may be relevant where there has been an
agency failure to institute appropriate administrative procedures,
to comply with existing administrative procedures, or to provide
The Ombudsman's views
The Ombudsman's recommendations include:
providing greater visibility of the Scheme, so that the public
knows they can ask to be compensated for government error;
establishing an inter-agency advisory or review panel, to deal
with disputed or exceptional CDDA claims and to play a "best
practice" leadership role;
using the potential offered by information technology to
improve case monitoring, to provide support for decision-making,
and to capture feedback; and
dealing appropriately with administrative drift, characterised
as needless delays, in finalising claims.
Lessons for affected agencies?
All of the Ombudsman's recommendations could be
independently considered by agencies, which deal with CDDA claims,
before any are formally adopted in the Department of Finance and
Deregulation's circular on Discretionary Compensation
However, it is the Ombudsman's recommendation in relation to
review which may be the more difficult to implement, although
providing the more significant administrative returns.
At present, as CDDA decisions are not made under an enactment,
they are not amenable to review under the Administrative Decisions
(Judicial Review) Act 1977, although they may be reviewable under
section 39B of the Judiciary Act 1901. CDDA decisions are not, in
any case, reviewable by the Administrative Appeals Tribunal.
Beyond time-consuming and expensive legal processes, some
agencies have an internal, administrative right of review
mechanism. Otherwise, where a claimant under the Scheme does not
accept a decision made in relation to them, it is open to the
decision-maker to consider the matter again, although there is no
obligation to do so.
It may be that a more formal system of internal review of CDDA
decisions is worth consideration by all affected agencies. Internal
review need not involve a meeting with, or oral hearing of, the
claimant. Review may be had "on the papers" - that is, by
review of the agency file, including any written submission of the
In the least, it may be that claimants could be given a full
opportunity to comment on the agency's assessment of their
claim before a decision is made on the claim - say, by providing a
copy of the agency brief or submission, prepared for the
decision-maker. That way, any inaccuracies may be readily
corrected, before a decision is made. At the least, the CDDA
decision-making process may be assisted by improved communication
between agencies and claimants.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
There has been a range of recent legal developments that affect privacy, child abuse claims and workers compensation.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).