A good decision in a time of plague

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Could it be there is no ‘right’ decision, just a good process?

By David Salt

What’s the best decision to make in a time of plague? Close your borders? Isolate your citizenry? Ration supplies? Close schools? Scorch the landscape? (Actually, for our east coast, the forests have already all been scorched and it doesn’t seem to be slowing the rate of infection.)

Of course, versions of all these actions are being applied in different measures here and overseas in the face of COVID-19. We have all been impacted by these decisions and most of us have strong views on which decisions are good and which are bad. Indeed the ‘strength’ of those views is on clear view in the twitterverse and in the mass media, and at times that strength is verging on the hysterical.

I can say from my own family’s experience, we are scared.

There is no perfect

I think most fair minded people would acknowledge that no-one has the perfect solution (or even a near perfect solution). Every option is problematic. Each comes with difficult trade-offs including constraints on personal freedoms, social isolation and reduced access to important goods and services. For some (eg, the wealthy), these trade-offs are inconvenient but they’ll cope. For many they are life changing; and for some they are life threatening.

What’s more, given the complexity of the systems being managed here, there is enormous uncertainty about how different options will actually pan out.

Given all this, surely we should all be more passionate about the process by the which a decision is made rather than it’s ‘rightness’ – because there simply isn’t a ‘correct’ answer. Or, in other words, rightness is actually more about the process of making a decision rather than the decision itself.

Good decision making

What are the ingredients of a good decision-making process in a time of crisis?

Here are a few key elements: the process needs to make use of the best information (and experts) available; it must be transparent, fair and adaptive. Above all, the process needs to be trustworthy.

Trust is not a given, it’s earned. It’s difficult to build and is easily lost. However, if the process is genuinely well informed by the science – and is transparent, fair and adaptive – the trust bank is built on solid foundations and will continue standing regardless of tough operating conditions, setbacks, slip ups and sub-optimal decisions – all of which are a given in a time of plague and mass disruption.

So far our governments haven’t done too badly. They have acknowledged the gravity of the situation, been open about the medical expert advice they have been receiving and how it informs their decisions, and have made some massive resource commitments to bolster the economy and ecology of our society.

Yes our governments (state and federal) have made many slip ups and sub-optimal decisions including slow responses, ambiguous and contradictory messaging, and letting cruise ships unload in Sydney with zero vetting. Yes it’s been messy, and social media has been even more venomous and judgmental than usual. But society is still functioning, riots don’t appear likely and the general public is acknowledging the need for harsh restrictions in the face of an unprecedented threat. (I hate using the word ‘unprecedented’ but it really does apply here. However, every pandemic is unprecedented because each is different. The Spanish Flu pandemic may have been bigger – so far – but it was a different world 100 years ago.)

In any event, while our response hasn’t been perfect, I trust our system and I’d rather be in Australia at the moment than in the US or the UK. The US, in particular, looks to be headed for grief on a massive scale. And they have a leader who says this disturbance will be over in a fortnight.

Transparent, fair and adaptive

For trust to be sustained in our decision making we need to see what it is based on. It needs to be a transparent process. We live in an open society with a free press and a strong set of institutions to validate information and the manner in which the government hand out resources.

Authoritarian governments might find it easier to impose draconian measures to counter a plague but the lack of transparency in such places is also a recipe for a plague to take off. Such was the case with the birth of the COVID-19.

We have a strong belief that government resources should be used for the common good and that the most vulnerable in society are looked after. In a time of plague this is doubly important, something our elected leaders are all too aware of.

The ‘rule of law’ is a particularly important component of being ‘fair’. That is the rules and constraints applied to the community are applied to everyone without fear or favour, something that is ensured by transparency and strong institutions. ‘Exceptionalism’, the practice of making rules for others but believing you are the exception – will simply not be tolerated in a time of plague and politicians caught out doing it are essentially robbing from the trust bank. That’s one reason I’m glad I’m not in the US at the moment. Their leadership has raised exceptionalism to an art form.

Being adaptive – changing your strategy to adapt to changing circumstances – is less often spoken about when it comes to coping with a massive disturbance. I think that’s because our leaders want to convince the population that they have the answers and there is nothing to worry about. I think this was on show during our recent bushfire emergency.

Such hubris is simply unacceptable in a time of plague. Our leaders need to acknowledge the enormous uncertainties facing us and have the humility to say they don’t have the answers and that we all make mistakes. Making mistakes is not a sin, not learning from them is.

This is where a brains trust of experts feeding into a transparent process of decision making is critical.

What decision will we make next week?

Have we done enough to counter this pandemic? Have we gone too far? It’s impossible to say. We’ll probably know in a month.

The only certainty is that more big decisions will need to be made in the coming days, and the situation will change significantly in the coming weeks. None of the decisions our leaders make will be perfect. I accept that. But, for the sake of my family and my society, may those decisions be transparent, fair and adaptive. If they’re not, my trust will wither.

And in a time of plague, trust is everything.

Image: Image by Stefan Keller from Pixabay

Environmental FoIs & the ‘decision-making onion’

Reasons behind an environmental decision are often concealed beneath layers of government process.

By Peter Burnett

Why is it that despite reforms to federal Freedom of Information (FoI) laws, it seems it’s getting more and more difficult to get information out of government on the reasons behind decisions about the environment? These reforms, by the way, declare that embarrassment, loss of confidence in government and public confusion are irrelevant to decisions about whether to release documents. And yet the reforms don’t seem to have helped much.

Where officials might once have claimed substantive exemptions to release, based on grounds like confidentiality, now governments starve FoI processes of funding so that requests are more likely to be strangled by delay or blocked under an exemption based on the request involving an unreasonable diversion of the agency’s resources. Requests are also constricted by charging fees.

Information hidden in layers

Issues of exemptions, delays and fees aside, there can be a question of where to look for pertinent information. Sometimes substantive information is concealed (not necessarily deliberately) under layers of government process. The example that comes to mind is that of decisions concerning the approval or refusal of development projects, following environmental impact assessment (EIA). In the example these decisions are made under the federal Environment Protection and Biodiversity Conservation Act (EPBC Act).

Say you want to know why a minister has approved a controversial project. It’s like an onion: you will have to peel back the layers of advice and deliberation to get to the heart of the matter.

First, there’s the environmental impact statement. You would think this would be a public document, but it’s only public for a limited time, when it is published for public comment. After that you’ll have to make an FoI application. In any event, because it is prepared by the proponent it will tell you about the project but it won’t contain any ministerial thinking. Let’s call this layer 1.

Then there’s the environment department’s ‘recommendation report’, their statutory advice to the minister on whether the development should be approved and, if so, on what conditions (this is layer 2). This is available on application, under the EPBC Act rather than under FoI, although the department can still claim some FoI-style exemptions. Assume however that you’ll get it. As it’s a legal document, it will be couched in formal and evidence-based terms. It will tell you more, but it’s probably not the whole story.

Then there’s the department’s ‘covering brief’ (layer 3) to which the statutory documents are attached. While the brief might blandly transmit the recommendation report and other decisional documents to the minister, equally it might get more directly to the nub of the issue than the recommendation report, and better reveal the ‘flavour’ of the department’s advice. The brief will be available under FoI, subject to the usual exemptions and processes, but a separate application will be needed.

The next layer (number 4) might be advice from a political adviser in the minister’s office. Advisers are not officials, not bound by public service rules or ethics. This advice might be oral or written. If it’s written, it’s still subject to FoI, but in practice it probably won’t be available because often takes an ephemeral form, such as a ‘sticky note’, which might be discarded once the decision is made and the documents returned to departmental custody.

Invisible and hidden layers

The Minister might also meet with the department to discuss its advice. While officials may make a record of the meeting (number 5), such records are often bland: a minister may probe departmental advice, but even if that probing reveals the minister’s political thinking, officials may think that it is not their business to record political comments or inferences.

The minister may also discuss the issue with proponents, lobbyists or other political players, many of whom pride themselves on working invisibly behind the scenes. Such discussions are not likely to be recorded in detail.

There is another process for obtaining reasons (behind decisions), but it doesn’t seem to yield much. Under the Administrative Decisions (Judicial Review) Act (ADJR Act), a person aggrieved by a decision can ask for a formal statement of reasons. The idea is to elicit enough detail about a decision to help the person get legal advice on a legal challenge. The problem is that ministers get government lawyers to draw-up these statements, so they become legally-justifying rather than records of actual thinking. These ‘section 13’ statements are likely to tell you that the minister had regard to all the considerations laid down in the Act and then balanced them carefully in the exercise of discretion. Unless someone’s made a legal mistake in the decision process, it can be a story of ‘move along, nothing to see here’.

Why not just ask?

Rather than wade through FoI processes, there’s always the option of asking. A journalist for example might ask about the reasons for a decision. Politicians of course are legendary for not answering questions.

Another channel for asking is for Senators to ask questions in Estimates Committees. These questions are usually answered by public servants. You could be forgiven for expecting public servants, with their statutory duties of honesty and integrity, and their mantra of ‘frank-and-fearless’ advice, to be straight-shooters. However, in public forums they often aren’t, at least not in response to ‘advice’ questions. This is because public servants ‘advise’ government on policy, but usually do not ‘advise’ other parties.

My experience in Senate Estimates Committee hearings was one of public servants (including myself) answering questions directly, but literally and without elaboration, thereby meeting legal and ethical obligations, but sometimes frustrating Senators who were, in effect, asking for or about advice. Sometimes Senators don’t ask quite the right question, but if they do, the answer might be that the public servant can’t answer because it’s a question about advice!

At the end of the day, you can trust public servants, but they often won’t be much help on the most important questions: the information is concealed by the nature of their duties.

The decision onion

So there you have it. If you try to peel all the layers of the ‘decision onion’, the outer layers will come away easily enough, if slowly, and won’t tell you much. But the inner layers are resistant to removal. Advice from advisers is likely to be ephemeral. Discussions between Ministers and lobbyists or colleagues probably won’t be recorded in detail. An ADJR statement of reasons will be formal and unlikely to offer any real insight. And Estimates hearings won’t reveal advice.

But if you want to know what really was really driving a controversial decision, official processes probably aren’t the way to find out. Perhaps the story will come out years later in a political ‘tell all’ book.

Image by Chris Stermitz from Pixabay