This post is one in a series of posts on this blog written by students studying Non-Adversarial Justice at the Faculty of Law at Monash University. Students were invited to write blog posts explaining various complex areas of law relating to the justice system to ordinary readers. The very best post on each topic is published here.
By Zak Gaddie
Making a complaint to a government agency is tense: dealing with even minor problems often requires navigating various bureaucratic hoops, spending unnecessary time going back and forth with emails and phone calls (including the painful waiting while on hold to the various call centres). Usually, when a person makes a complaint, all they want in response is for the problem to be fixed, with a genuine apology and an assurance that the same error won’t happen again. While these complaints can often be resolved on first contact, there are many cases where the agency’s response seems impersonal, dismissive or simply unsatisfactory. This apparently simple solution turns out to be fairly rare. The failure of government agencies to resolve problems often leads to complaints to the Ombudsman or even protracted litigation in VCAT or the AAT. At these tribunals, applicants may seek the reversal of the government agency’s decision and compensation for resulting losses and inconvenience. This tedious process that could have been avoided had the agency simply given a full apology for the mistake and rectified the error earlier.
Giving apologies can be difficult for government agencies. For efficiency, they often use fixed responses and bureaucratic complaints procedures and for insurance or legal reasons, are apprehensive to admit their guilt by way of giving a full apology. In Victoria, apology laws don’t seem to cover these organisations enough for them to feel legally secure in giving apologies, despite the huge therapeutic and dispute-resolving benefits that apologies can have. In this article, I claim that Victorian government agencies should apologise to members of the public for mistakes they make when dealing with complaints. However, in order for this to occur, we need legal and cultural reforms to protect them from being sued following the admissions that come with such apologies.
The point of apologising
In the context of responding to mistakes made by public authorities in dealing with complaints from the public, the role of apology is first and foremost to diffuse the situation. The act of giving a proper apology can have the effect of reducing anger in the complainant and therefore reducing the likelihood of the dispute escalating to a higher complaint or litigation. In this way, apologies can mitigate the “fight or flight” response that is triggered by the discovery of the error, especially when the error has negatively affected the complainant. The “fight or flight” response typically involves a mixture of emotions including anger and fear, as well as even guilt or shame. This response may result in aggression, which left unresolved is only compounded by the injured person being left in a state of “unforgiveness”.
Such a state often causes people to come to the legal system seeking retribution, rather than restitution: they want a court declaration that can punish the government body, or at least give them a sense of justice in response to the error. This is unhealthy, and only exacerbates the injured party’s distrust in the bureaucratic systems, and never really allows for a proper resolution to the problem, leaving a bad taste in all parties’ mouths.
According to an empirical study on the effect of apologies going into settlement negotiations for a personal injury, apologies — even partial ones — can reduce this urge to litigate, and make it much easier for the parties to resolve issues at an earlier stage. However, this depends in part on the quality and content of the apology. The beneficial effect of an apology depends on whether the apology is full or partial, and on the proper timing, among other factors.
The current stumbling-blocks to proper apologies
A full apology, while the most beneficial form of apology, is also the most difficult. It contains an admission of fault or guilt and recognises the harm to the injured party that arose from the mistake. A full apology also acknowledges the reasons for the error, emphasises the steps that will be taken to ensure the error does not happen again and expresses regret and sympathy that it occurred at all. On the other hand, in the partial apology, the wrongdoer does not take responsibility, expressing only regret or sympathy. The fact that agencies often prefer not to apologise at all further shows the apprehension they have to apologising.
It is immediately obvious what makes the full apology more therapeutic, yet at the same time, quite difficult for government agencies to do. The admission of guilt and a gesture that rectifies the wrongdoing may be enough to satisfy the aggrieved party. They may even feel as though they have achieved a vindication of what they otherwise would have wanted to achieve through court, as a part of a more well-rounded “corrective justice.” It also appears to be an admission of guilt that can form the basis of a legal action.
This does not mean that there is no legal protection for people or organisations who make apologies. The Wrongs Act 1958 (Vic) has provisions that protect people who make an apology, but only for cases where an injury or death is in issue. This provides very narrow protection and can create challenges where the government agency is not defending a claim that it caused a death or injury. In such cases, it becomes much harder to defend a legal claim where a full apology has been given, especially if it is given in writing or by email. Furthermore, this legal risk is compounded by “admission or compromise clauses” in these agencies’ insurance policies. These clauses require permission from the insurer before the agency makes any admission of guilt or apology. This means that if a legal claim is brought against the agency following an apology, they may not even be insured. These legal complications make it difficult to recommend, as a practical matter, for government organisations to give full apologies whenever they handle a complaint, even though the effects of an apology are clearly beneficial to the complaint resolution process as a whole.
The need for legal and cultural reform to enable apology in the complaint resolution process
It is clear that the benefits of using apologies when dealing with apologies from members of the public can be enormous. They include:
- improving public confidence in government agencies and processes,
- reducing the likelihood and severity for further legal action, and
- having an overall therapeutic (rather than adversarial) effect on the complaint process.
However, it is necessary to change both the law and the legal culture around apology before it can become a readily available tool in complaint-handling procedures for government agencies in Victoria. Firstly, the statutory protection of apology from giving rise to legal liability needs to be widened beyond its current position in Part IIC of the Wrongs Act to cover more than what is already covered. In addition, further protections should be introduced to ensure that agencies making apologies when handling complaints will still be covered by their insurance. Secondly, the legal culture around what constitutes “justice” needs to change. A full apology, which among the other factors recognises the harm, takes responsibility, and ensures that the damage is fixed and won’t happen again. This will often lead to a better outcome, both morally and socially, than the usual remedy of damages, for all the parties involved. As such, Victorian government agencies should give apologies to the greatest extent possible when dealing with complaints by members of the public, and the legislature should enact new protections that allow the maximisation of this powerful and intuitive complaint resolution technique.
About Zak Gaddie
Zak is currently undertaking the Arts Honours program, in the field of German Studies, at Monash University to complement his BA/LLB degree. He has a strong interest in law reform, appropriate dispute resolution and non-adversarialism, which stems not only from his law studies, but his studies in politics, philosophy and general interest in driving positive social change. Connect with Zak on Twitter and Linkedin.