Information - Reasons in Administrative Law

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This article is a topic within the subject Administrative Law.

Contents

Required Reading

R Creyke & J McMillan, Control of Government Action: Text, Cases and Commentary, 3rd ed, 2012, [20.1.1]-[20.1.15], [20.2.1]-[20.2.8].

Study Guide: Commonwealth statutory provisions (s 13 of the ADJR Act, s 28 of the AAT Act, s 430 of the Migration Act, s 25D of the Acts Interpretation Act) and extract from L&B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15.

Introduction

Commonwealth Administrative Review Committee (the Kerr Committee) recognised that it was critical, if people were to make an effective claim against government, to be apprised of reasons for the decision.

  • That recommendation was applied in the Administrative Decisions (Judicial Review) Act 1977 (Cth) (in s 13) and the Administrative Appeals Tribunal Act 1974 (Cth) (in s 28), which imposed reasons requirements.
    • Deane J emphasised the importance of the right to reasons procedure in the AAT Act when he said “the Act lowered a narrow bridge over the moat of executive silence.”

The practice of giving reasons underpins the values of transparency and accountability that permeate administrative law. The Administrative Review Council in its Best Practice Guide 4, Decision Making: Reasons, summarised the advantages of reasons statements as:

  • Affording a person affected by a decision the opportunity to have the decision explained.
  • A person may then choose whether to exercise their right of review and appeal in an informed manner.
  • Helping decision makers think more carefully about their task and to be more careful in their decision making.
  • Helping agencies identify relevant principles and create standards to guide future decision making.

The obligation to provide reasons for a decision is a feature of judicial function.

  • McHugh JA: “Without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision.” He describes the advantages as:
    • “Enabl[ing] the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge’s decision.”
    • Furthering judicial accountability.
    • Enabling the formulation of precedent.

Despite these advantages, a universal obligation may create issues, including:

  • The vast majority of decisions are not reviewed, therefore, should a cost-benefit analysis be applied?
  • What evidentiary value does a reasons statement hold in a review? (Especially considering it is often prepared by someone other than the actual decision-maker).
  • What weight should courts attach to the reasons of officials or tribunals when assessing their adequacy?
  • Considering multiple decisions in similar factual circumstances, is it acceptable for decision-makers to use templates?
  • Should a finding of inadequacy of reasons lead inexorably to invalidity?

Statutory duty to provide reasons for decisions

The 1980s administrative law reforms at the federal level brought about a far-reaching and radical change by imposing a general duty on certain administrative decision-makers to provide reasons. (See AAT and ADJR Acts above).

  • The obligation has been replicated in state and territory judicial review and tribunal legislation
  • Such provision may include special rules relating to confidential information or information which might prejudicially affect the physical or mental health of a person. They may include procedures relating to who is entitled to the statement of reasons and how they are to receive them, as well as specific content required of the reasons statement.

There is a standard template for a reasons statement in s 13 of the ADJR Act.

  • Under s 13, reasons need not be given under ADJR legislation for all decisions, including:
    • A decision not covered by the Act (one that is not ‘administrative’ in character or not made under an enactment).
    • If reasons have already been given or the person has a right to a statement of reasons under the AAT Act.
    • A decision excluded by Schedule 2, which covers certain decisions relating to the defence forces, intelligence operations, aircraft design, trade secrets and confidential information, diplomatic and consular privileges and immunities, the administration of criminal justice and civil courts, matters of security, monetary and financial matters, public service employment and remuneration and Migration Act 1958 (Cth) matters.

s 13A provides that a reasons statement does not need to include:

  • Information which relates to the personal or business affairs of a person (other than the person making the request).
  • Information supplied in confidence; which would reveal a trade secret or was furnished in compliance with other legislation.
  • Divulgence which is prohibited by legislation.

s 14 provides that a statement must not include information if the Attorney-General has certified that the disclosure of information would be contrary to the public interest because it would:

  • Prejudice the security, defence or international relations of Australia.
  • Disclose cabinet deliberations.
  • Or for any other reason which could form the basis of a claim for non-disclosure in judicial proceedings (such as Crown privilege or legal professional privilege).

The AAT Act is more limited in its application and applies only to decisions reviewable under the Act or with standing to appeal to the AAT.

Common law position

In Public Service Board of NSW v Osmond,[1] the High Court held that there is no common law duty that requires administrative decision-makers to provide reasons for their decisions. However, such a duty may arise in ‘special’ (Gibbs CJ at 670) or in ‘exceptional’ (Deane J at 656) circumstances.

Arguments in favour of requiring administrators to provide reasons for their decisions can be grouped in three categories:

  1. Instrumentalist arguments. The requirement is thought to encourage better and more rational decision-making. A contrary view is that it can encourage standardised statements which rely on previously accepted justifications rather than a full consideration of the merits and may also add to the time and cost involved.
  2. Political theory and pragmatism. Enhancing government transparency and accountability and giving legitimacy to a decision by showing that it was not made arbitrarily and that issues raised by interested parties have been adequately considered and that the facts on which the reasons rest are accurate. (A variation on this argument is that providing reasons for a decision respect’s an individual’s dignity.)
  3. Natural justice arguments, based on an individual-rights model. As a matter of fairness, there should be a duty to provide reasons for decisions so people affected can decide whether the decision has been lawfully made and why they have not succeeded; whether there are grounds for review or appeal; and to assess the strength of the case against them should they seek review or appeal. Without reasons, the review functions of courts and other review bodies would also be frustrated.

This was discussed in Public Service Board of NSW v Osmond:[2]

  • Facts: Mr Osmond was employed under the Public Service Act 1979 (NSW). He applied for a promotion but was not recommended for the position. He requested reasons for the Board’s decision but was refused. There was no statutory duty on the Board to provide reasons.
  • Held: there was no general rule of the common law or principle of natural justice which required that reasons for decisions be given.
    • Gibbs CJ noted that this was the case even when decisions “have been made in the exercise of statutory discretion and which may adversely affect the interests, or defeat the legitimate or reasonable expectations of other persons.”
    • He rejected Kirby P’s contention in the appeal court that a right could be founded upon the judicial incident of providing reasons. “...there is no justification for regarding rules which govern the exercise of judicial function as necessarily applicable to administrative functions.”
    • He held that even if such a right would be desirable, it was not the role of the courts to introduce one, instead it was the province of parliament.
    • Furthermore, even under the assumption that in special circumstances, natural justice may require reasons to be given, Gibbs CJ found that the present case was not such a case.

Content of a reasons statement

The core purposes of reasons statements are prominent in the case law on what constitutes an adequate statement of reasons:

  • Enabling a person to decide whether to initiate proceedings for judicial or tribunal review.
  • Assisting a court or tribunal to decide whether to set aside a decision being reviewed.

A point commonly made is that a reasons statement will be inadequate if a review body is incapable of seeing from the reasoning the link between the outcome and the facts. Or, in an appeal for error of law, whether the result depended on findings of fact or law or the reasoning process breached the relevant standards of administrative law.

  • See Textbook [20.2.10E] for a summary of the law developed.
  • Content may vary from one context to another, but the guiding principle is the same.
    • As set out by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf,[3] this principle is the decision-maker “set out the findings which it did make... A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that [the provision] obliges the [decision maker] to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.”

Statutory duty to provide reasons

The ADJR Act s 13 provides that the decision-maker is to: “furnish a statement in writing setting out the findings on material questions fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.”

  • Where a statute simply provides that reasons are required, leaving it to other sources to spell out the obligation, generic criteria may be provided in interpretation legislation.
    • For example, the Acts Interpretation Act 1901 (Cth) s 25D provides: “Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression ‘reasons’, ‘grounds’ or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based."
  • Woodward J explained, in Ansett Transport Industries (Operations) Pty Ltd v Wraith,[4] that the content of a reasons statement should be such that the person requesting it should be able to say “Even though I may not agree with it, I now understand why the decision went against me. I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error of law, which is worth challenging.”
  • “The reasons that are set out... must be reasons which not only will be intelligible, but also can reasonably be said to deal with the substantial points that have been raised”: Re Poyser and Mill’s Arbitration.[5]
  • They must also “disclose adequately the intellectual process which has resulted in a particular determination”: Garrett v Nicholson.[6]
  • They must be expressed in language which can be understood by the parties, although technical terms which would be understood by the parties are acceptable: Telstra Corporation Ltd v Australian Competition and Consumer Commission (No2).[7]
  • The length of the statement will depend on the “nature and importance of the decision, its complexity and the time available to formulate the statement”: Ansett Transport Industries (Operations) Pty Ltd v Wraith.[8]
  • The statement may also fulfil an educative function, particularly where they interpret contested legislative provisions or relate to professional standards.
    • In Res I v Medical Board of Queensland,[9] in deciding whether a registrant engaged in unprofessional conduct, the Queensland Court of Appeal said that reasons should “inform the registrant in question, the profession and the public of the reasons why conduct if found to be unsatisfactory. That will often require identification of at least the minimum content of the standards required.”

What are material facts?

A decision-maker may have to set out whether it has not accepted evidence going to a material issue, including whether the applicant or a witness has been believed.

  • Any findings of fact on which the conclusion was reached, particularly if they were contested: Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham.[10]

What is material will depend on the statutory criteria and the significance of particular facts.

  • The Full Federal Court in Minister for Immigration and Multicultural Affairs v Singh[11] said that “if a decision... turns upon whether a particular fact does or does not exist... then the fact is material.”
  • In overruling the view in the above decision, the High Court in Minister for Immigration and Multicultural Affairs v Yusuf[12] found that ‘materiality’ refers to the findings actually made by the tribunal.

Summary of Study Guide Materials

Administrative Decisions (Judicial Review) Act 1977 (Cth)

s 13 of the ADJR is summarised as follows:

  • s 13(1) – a person may request in writing a statement of reasons (also to be written), “setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving reasons for the decision.”
  • s 13(2) – the reasons statement should be given “as soon as practicable, and in any event within 28 days”.
  • s 13(3) – if the decision-maker is “of the opinion that the person who made the request was not entitled to make the request,” they must:
    • (a) give the person “notice in writing of his or her opinion” or
    • (b)”apply to the Federal Court or the Federal Magistrates Court under subsection (4A) for an order declaring that the person who made the request was not entitled to make the request.”
  • s 13(5) – the decision-maker may refuse to give a reasons statement if the person requesting it already has one, has not applied for one within 28 days of the decision or if the request was not made within a reasonable time after the decision was made.
    • The decision-maker must inform the person of this within 14 days.
  • s 13(7) - the Federal Court or the Federal Magistrates Court may order an additional reasons statement “containing further and better particulars in relation to matters specified in the order with respect to those findings, that evidence or other material or those reasons” if they consider the original statement to be inadequate.
  • s 13(11) – the section does not refer to decisions which:
    • Fall under s 28 of the Administrative Appeals Tribunal Act 1975.
    • Decisions already accompanied by written statements (evidence or other material) setting out the reasoning
    • Decisions under Schedule 2
  • For Schedule 2 and other information not required to be disclosed, see "Statutory duty to provide reasons for decisions" (above).

Administrative Appeals Tribunal Act 1975 (Cth)

s 28 of the AAT is summarised as follows:

  • s 28(1) - provides a right to receive a written reasons statement, following a request in writing.
  • s 28(2) – if the Tribunal considers that a statement is inadequate it may order an additional, adequate, one to be given.

Migration Act 1958 (Cth)

The relevant sections from the Migration Act are summarised as follows:

  • s 430 (1) - refers to the Refugee Review Tribunal. “Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
    • a) Sets out the decision of the Tribunal on the review; and
    • b) Sets out the reasons for the decision; and
    • c) Sets out the findings on any material questions of fact; and
    • d) Refers to the evidence or any other materials on which the findings of fact were based.”
  • s 368 – imposes a similar obligation on the Migration Review Tribunal.

Acts Interpretation Act 1901 (Cth)

s 25D of the Acts Interpretation Act 1901 specifies that: “Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression ‘reasons’, ‘grounds’ or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.”

L&B Linings Pty Ltd v WorkCover Authority of NSW[2012] NSWCA 15.

  • Facts: WorkCover determined a review under s 170 of the Workers Compensation Act. The appellant argued that the reasons statement he received from WorkCover was inadequate and constituted a jurisdictional error warranting a declaration of invalidity. There was no express statutory requirement that the Authority give reasons.
  • Held: The Court referred to a statement in Sherlock v Lloyd[13]: “In the modern environment there is a general expectation that a decision which affects the rights of parties should be reasoned. This serves to assuage any sense of grievance in the losing party and as a discipline for the tribunal; and renders the decision less likely to appear to have been arbitrary or one affected by extraneous considerations.”
    • The absence of a general law obligation for an administrative decision-maker to give reasons affects:
      1. The process of implication of a statutory obligation
      2. The extent of any implied duty
      3. The approach of a court exercising supervisory jurisdiction in reviewing the reasons given
      4. The consequences of failure to give reasons
    • The consequences of failure to give reasons may be:
      1. Jurisdictional error entailing invalidity of the decision
      2. Error of law on the face of the record, entitling an aggrieved party to a quashing order
      3. Failure to complete the function reposed in the decision-maker, not entailing invalidity of the decision, but attracting a mandatory order to give decisions
      4. No direct legal consequences other than an available inference that the body had no good reasons for its determination
    • “Reasons which demonstrate factual error will not allow a court to intervene in the exercise of the supervisory jurisdiction. It follows that, if illegality of reasoning is not a basis for intervention, the fact that the reasons reveal illogicality will not render the decision invalid, nor reasons inadequate or improper.”
    • “Assuming there was an implied obligation to give reasons, that obligation would not extend to a requirement to give weighting to particular indicators...”

End

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References

Textbook refers to R Creyke & J McMillan, Control of Government Action: Text, Cases and Commentary, 3rd ed, 2012.

  1. (1989) 159 CLR 656.
  2. (1989) 159 CLR 656.
  3. (2001) 206 CLR 323.
  4. (1983) 48 ALR 500.
  5. [1964] 2 QB 467 at 478 per Megaw J.
  6. (1999) 21 WAR 226 at [73] per Owen J.
  7. (2007) 97 ALD 652.
  8. (1983) 48 ALR 500 at 507.
  9. [2008] QCA 152.
  10. (2000) 58 ALD 609.
  11. (2000) 98 FCR 469.
  12. (2001) 206 CLR 323.
  13. [2010] VSCA 122
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