By Sarah Tan
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.
2018 marks the twentieth anniversary of National Sorry Day – a day that recognises the ‘grief, suffering and loss’ suffered by the Stolen Generations. With the recommendation from the Bringing them Home report, then prime minister Kevin Rudd apologised to the Aboriginal and Torres Strait Islander People for the acts of the Australian Parliaments.
Often, apologies are the hardest things to do. However, when a government agency has made a mistake, ‘sorry’ is exactly what citizens want to hear. This blog entry postulates the argument that a Victorian government agency should provide apologies to the public for mistakes it has made when dealing with complaints.
What is an (effective) apology?
Apologies can be documented in many forms – it can range from something along the lines of ‘I’m sorry for how you feel…’ to ‘It is a regret that…’. Nevertheless, an apology that is not genuine may backfire, resulting in the recipient feeling angrier. In cases involving bureaucratic organisations, misworded apologies may add to the conflict, confirming feelings that the organisation does not act in the public’s interest.
The New South Wales Ombudsman defines an apology as ‘an expression of feelings or wishes that can include sorrow, sympathy, remorse or regret as well as an acknowledgement of fault, a shortcoming or a failing’, and defines an effective apology as one that contains the following six Rs:
With apologies being regarded by complainants as an essential prerequisite for the resolution of complaints, the benefits of apologising in the context of resolving complaints to governmental agencies are threefold – it is a mark of integrity, it promotes public interest, and it addresses key psychological impacts.
Firstly, an apology to members of the public demonstrates integrity. With governmental agencies depending on public confidence, it is of utmost importance that ethical governance and its themes of accountability, transparency and responsibility are maintained. Through the issue of apologies, a positive and transparent image of the agency will be restored. Instead of being regarded as an organisation’s weakness, an apology serves as a testament to the maturity of the government agency – one that is responsible and accountable for its weakness.
Although there is no guarantee that an apology may resolve every complaint, an apology at the minimum, will show how the agency acts with integrity. Furthermore, with the right motive in mind, an apology has the potential to restore trust and integrity. With trust being imperative for the functioning of organisations and human relationships, apologies are mechanisms of trust repairs that seek to restore positive attitudes and reduce negative feelings that occur from the conflict.
Secondly, an apology is beneficial when dealing with complaints as it helps to promote public interest and protects the complainant’s interest. This is also reflected in the use of apologies as a remedy in several aspects of Australian law. By publicising an apology, the public is educated on the wrongs of the government agency and recipients of apologies have a sense of public validation and personal vindication. Additionally, an apology serves the function of addressing any lingering impacts of the conduct on the complainants. As phrased by corporate respondents who were recipients of a publicised apology, an apology by an organisation sends a clear message to the community that a particular agency had erred.
In the media industry, the use of apologies as a way of responding to complaints is by no means unconventional. Under existing self-regulation mechanisms of the Australian Press Council, the use of remedies without adjudication has proved useful in the settlement of about three-quarters of its 700 complaints received each year. By resolving complaints in the form of apologies, corrections, or some form of remedial action, the prospects of a complaint resulting in litigation are minimised. Furthermore, with research indicating that complainants who receive an apology are more satisfied than those who receive no apology, it is undoubtedly that an apology is a tool of communication and emotion that has the ability to heal the emotional wounds associated with the wrong.
Lastly, an apology is beneficial as it has the potential to address key psychological impacts. More often than not, people make complaints as they feel humiliated, hurt, betrayed, and want to be given a full explanation of the incident. Through an apology, feelings of respect and dignity are cultivated and one’s reputation is restored. In addition, an apology has the ability to assure the recipient that he or she was not at fault. With evidence suggesting that apologies have a strong place of importance in the criminal justice perspective, it is evident that apologies may have the potential to achieve purposes beyond traditional remedies of compensation. That being said however, is not a proposition that apologies are to be seen as an alternative to punitive damages. Should apologies be construed as a form of compensation, misconceptions will arise in that apologies are to be regarded as an acknowledgement of a wrong.
On the contrary, an apology should be used as a tool in resolving complaints as part of a mechanism that incorporates notions of restorative justice. In the criminal justice system, the giving and acceptance of an apology are traits of restorative justice. Since an apology is a common term of settlement in conciliations and mediations, the use of such concepts when dealing with complaints will allow complainants to have a better understanding of why the mistake occurred. Being non-adversarial in nature, apologies are often described in miraculous terms with an effect of promoting restoration.
Nevertheless, despite the benefits and willingness of public authorities in Victoria to apologising, research has indicated an inconsistency of such a practice in the public sector. With more than half surveyed suggesting that they only apologise in certain scenarios and sixty-one per cent of authorities having no policies or guidelines to deal with apologies, the survey also revealed the main concern government agencies had with apologising – legal liability arising out of the apology.
Ever since the twentieth century, Australia has introduced apology laws in a bid to encourage apologies and reduce litigation without creating automatic liability. Nevertheless, there remains a strong belief that apologising in itself, is an admission of liability with adverse insurance applications. In Victoria, apology protection applies to civil proceedings where the conduct in issue deals with the death or injury of a person, or is in relation to a defamation claim.
Given the limited scope of protections, recommendations should be made such that protections for apologies are broadened. Acting on the recommendations of the Access to Justice Review, an apology should not be construed as an admission of liability and should not be admissible as ‘evidence of fault or liability’. At the bare minimum, legislators should draw on apology laws in New South Wales which provide protection for full apologies; in Victoria, protection is only awarded to ‘partial’ apologies. Under such a premise, legislators must first comprehend the real meaning of an apology.
Should apology laws in Australia remain inconsistent, the lack of uniformity may result in the minimum threshold being prescribed. Given the wide-ranging benefits of apologising, Victorian government agencies can only be an advocate of apology to members of the public for the mistakes they have made when dealing with complaints if reforms to apology laws are made. Nevertheless, until that happens, government agencies should bear in mind the High Court judgement which left open the possibility for the use of an apology as evidence in another way.
Sarah Tan is a third year Bachelor of Laws (Hons) student at Monash University who will be completing her studies in 2019. Having grown up in Singapore, she has a keen interest in international arbitration. She is currently a seasonal clerk at Cornwall Stodart and hopes to pursue her passion for alternative dispute resolution prospects in the commercial law context. Sarah has also been involved in pro bono work at the Monash Oakleigh Legal Services and Law Society of Singapore Pro Bono Services Office.
- Articles/ Books/ Reports
Allan, Alfred and Carroll, Robyn, ‘Apologies in a Legal Setting: Insights from Research into Injured Parties’ Experiences of Apologies after an Adverse Event’ (2017) 42(1) Psychiatry, Psychology and Law 10
Allan, Alfred, McKillop, Dianne and Carroll, Robyn, ‘Parties’ perceptions of apologies in resolving Equal Opportunity complaints’ (2010) 17(4) Psychiatry, Psychology and Law 538
Carroll, Robyn, Beyond Compensation: Apology as a Private Law Remedy (Irwin Law Inc, 2010) 349
Department of Justice and Regulation, Submission to Attorney General, Access to Justice Review – Summary Report, August 2016
Friedman, Hershey H, ‘The Power of Remorse and Apology’ (2006) 7(1) Journal of College and Character 1
Goatly, Andrew, Washing the Brain Metaphor and Hidden Ideology (John Benjamins Publishing, 2007)
Jeter, Whitney K and Brannon, Laura A, ‘‘I’ll Make It Up to You:’ Examining the effect of apologies on forgiveness’ (2016) The Journal of Positive Psychology 1
King, Michael, Freiberg, Arie, Batagol, Becky and Hyams, Ross, Non-Adversarial Justice (Federation Press, 2014)
Lines, Wayne, ‘Civil Liability: New laws clear path for genuine apologies’ (2016) 38(8) Bulletin (Law Society of South Australia) 14
NSW Ombudsman, Parliament of New South Wales, Apologies – A practical guide (2009)
Ombudsman Western Australia, Parliament of Western Australia, Guidelines on Complaint Handling (2017)
Roschk, Holger and Kaiser, Susanne, ‘The nature of an apology: An experimental study on how to apologize after a service failure’ (2013) 24(3) Marketing Letters 293
Stubbs, Julie, ‘Beyond apology? Domestic violence and critical questions for restorative justice’ (2007) 7(2) Criminology & Criminal Justice 169
Victorian Ombudsman, Parliament of Victoria, Apologies Report (2017)
Vines, Prue, ‘Apologising for Personal Injury in Law: Failing to Take Account of Lessons from Psychology in Blameworthiness and Propensity to Sue’ (2015) 22(4) Psychiatry Psychology and Law 624
Vines, Prue, ‘Apologising to Avoid Liability: Cynical Civility or Practical Morality?’ (2005) 27(3) Sydney Law Review 483
Zwart-Hink, Andrea, Akkermans, Arno and Wees, Kiliaan Van, ‘Compelled Apologies as a Legal Remedy: Some Thoughts from a Civil Law Jurisdiction’ (2014) 38(1) University of Western Australia Law Review 100
Defamation Act 2005 (Vic)
Wrongs Act 1958 (Vic)
Australian Press Council, Remedies without adjudication (2011) <https://www.presscouncil.org.au/remedies-without-adjudication/>
Duncan, Tom, ‘Ethical Governance: Accountability, Transparency and Responsibility in Parliaments’ (Paper presented at the 35th CPA Australia and Pacific Regional Conference Cook Islands, Rarotonga, 27 November – 1 December 2016)
Government of Western Australia, National Apology to the Stolen Generations (March 2018) Western Australian Museum <http://museum.wa.gov.au/explore/articles/national-apology-stolen-generations>
Marlow, Karina, ‘Explainer: the Stolen Generations’, SBS (online), 1 December 2016 <https://www.sbs.com.au/nitv/explainer/explainer-stolen-generations>
Mills, Tammy, ‘Sorry is the hardest word: why our authorities don’t apologise for stuff-ups’, The Age (online), 2 May 2017 <https://www.theage.com.au/national/victoria/sorry-is-the-hardest-word-why-our-authorities-dont-apologise-for-stuffups-20170502-gvxdyn.html>
NHS Education for Scotland, The Power of Apology (2010) <https://www.nes.scot.nhs.uk/media/6338/Apology%20Spring%20Focus%202010.pdf>
Riddington, Liana Kayley, Responding to a Trust Violation: The Relative Effectiveness of Apology, Denial, and Reticence (Thesis, University of Tasmania, 2015)
Vines, Prue, ‘The Apology in Civil Liability: Underused and Undervalued?’ (Working Paper No 33, University of New South Wales Faculty of Law Research Series, 2013)