Reasons for Decision; Merits Review 1

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Reasons for Decision[1]

Under CL

  • Osmond: HC held that there is NO general duty or CL rule that requires administrative (or judicial) Decision Makers to provide reasons for their decisions,
    • => But, such a duty may arise in special circumstances

Arguments in favour of providing reasons for decisions (1052)

  • Instrumentalist Argument: Encourages better and more rational decision-making, particularly in terms of achieving the consistency ideal of good govt.
    • Counter argument: It can be difficult to prove that decision-making has in fact been improved by the requirement. Some argue that it may in fact have the opposite effect. (EG. May encourage standardised statements, rather than full considerations of merits, AND the requirement may also add to the cost & time involved in decision-making.)
  • Political Theory Argument: Enhances governmental accountability and transparency (both internally and for person getting decision), and the legitimacy of the decision – esp to show that it was not made aribitrarily, and therefore enhances public confidence.
    • Counter political interests include: The need to protect national defence & security interests – e.g. ASIO decisions; the need to protect info obtained in confidence; and the desirability of protecting personal private info and certain commercial interests – this would all be affected by a blanket requirement for reasons etc
  • Procedural Fairness Argument: As a matter of fairness, there should be a duty to provide reasons for decisions so as to enable people affected by the decision to determine whether the decision has been lawfully and legitimately made (i.e. a document of proof); whether there are grounds for appeal; AND to assess the strength of the case against them should they seek review or appeal.
    • These arguments have been rejected by the HCA on 2 bases: They confuse the duty to provide reasons w/ the procedural fairness requirement that a person should know the case before him or her; AND they confuse the fairness of the decision-making process w/ the question of the legitimacy of the decision made.
  • Helps understanding of the law and the manner of its application, which in turn promotes compliance

Compare encouragement of admin decision makers to give reasons, with the judicial obligation to provide adequate reasons. Re impartiality – justice must be done and be seen to be done. However, the context of a judge’s decision matters re reasons – e.g. interlocutory decisions on evidence admissibility vs conclusion of a 3 day NSWSC hearing.

According to McHugh J, the giving of reasons serves 3 main purposes

  • Reasons are not only part of admin decision-making, but also judicial decision-making: An arbitrary decision cannot be a decision and without the articulation of reason, a judicial decision cannot be distinguished from an arbitrary decision.
  1. Enables parties to see the extent to which their arguments have been understood and accepted as well as the basis for the decision, and in this way provide a foundation for the acceptability of a decision by the parties and the public.
  2. Giving reasons furthers judicial accountability.
  3. Enables practitioners and members of the public to ascertain the basis upon which cases will probably be decided in the future.

Other criticisms of any blanket requirement for reasons

  • Osmond – see below
  • The utility is questionable given the admin DM may well be justifying a decision after it has been made
    • Given the time pressures faced by many DMs, especially those of seniority, a Statement of Reasons is often drafted by the lawyers following a document trail. A step removed from the actual DM.
    • Substantial time may have passed since the decision was made
    • Retrospective validation is a problem
      • Lack of candour (not candid)

However, many of these problems could actually be addressed by having something similar to a blanket requirement for reasons – the DM would contemporaneously give the reasons and hopefully come to a decision subsequent to the consideration of reasons.

Public Service Board of NSW v Osmond (1986) HCA:[2]

  • RULE: There is NO general duty or CL rule that requires administrative (or judicial) decision-makers to provide reasons for their decisions
  • => But, such a duty may arise in special circumstances
  • Facts: Osmond was employed under a NSW Act. Goes to Board b/c didn’t get a promotion. His appeal was rejected. No reasons were given.
  • HC: Giving reasons is not justified by the principle of NJ -> B/c things done after the decision do not affect the fairness of the decision-making. It is an extra admin burden and increase cost in delay and that there would be exceptions in place. Did not think it was right to impose such an administrative burden. Not prepared to make that policy decision!
  • The hearing rule is not affected by no reasons being given.
  • Kirby J: Wants the Osmond decision to be recontested in the HC. Indicated his preference (-> which it can be argued would possibly disqualify him from hearing such a case).
  • Another problem with Kirby’s view: He did not appreciate the difference b/c procedural fairness and duty to give reasons. Procedural fairness requires that procedure be fair PRIOR to making the decision; after making the decision procedural fairness is not relevant.

What constitutes special or exceptional circumstances:

  • A-G v Kennedy Mille Televisions: NSW C of A held that a legal costs assessor has a duty to provide reasons for his decisions on the basis that failure to provide reasons for the decisions would render the right of appeal under the Legal Profession Act 1987 (NSW) almost useless.
  • Edwards v Giudice: The Federal Court held that the Australian Industrial Relations Commission had to provide reasons for its decision relating to an unfair dismissal, B/C the matter was strongly contested and there was a final order of significant consequence.
  • Liang: HC held that: In analysing reasons for decisions, the court was to give the DMs reasons a beneficial construction.

How important is Osmond?

  • The rule in Osmond is no longer that important b/c at Federal level there is now lots of legislation and at NSW level there is practice note.
  • ALSO AT CL, Judicial officers can make orders requiring parties to do certain things for the resolution of a case. Part of this can be requiring reasons. Therefore, this represents a practical away around the fact that Osmond was defeated and the absence of a broad common law right.

Statutory Duty to Provide Reasons for Decision [3]

  • Many statutes impose a specific duty on DMs to provide reasons for certain decisions.
  • Provisions may incl procedures relating to who is entitled to statement of reasons, & how they are to receive them, AND provisions may also set out required content of statement of reasons.
  • The 1980s administrative law reforms at a federal level brought about a far-reaching & radical change by imposing a more general duty on certain administrative decision-makers to provide reasons under s 13 of the ADJR Act, and s 28 of the AAT Act.
  • Whenever you appeal under the AAT or ADJR Act, or MRT = you get a right to reasons.

(=>Note that the following are all Cth Statutory Provisions):

Administrative Decisions (Judicial Review) Act => s 13 (ADJR) (Back of Study Guide)

Limitations

Only regards decisions that are administrative in nature and must be made under enactment (s 13). Also the ifs and buts of sch 2 and s 13A.

S 13

  • (1): A person entitled to make an application to the Federal Court or Federal Magistrates Court in respect to a decision to which the ADJR Act applies may, -> by notice in writing given to the person who made the decision (to which this Act applies), request a statement setting out findings on;
    • Material questions of fact,
    • Referring to the evidence or other material on which those findings were based, and
    • Giving the reasons for the decision.
  • (2): When such a request is made, the person who made the decision must - within 28 days - prepare the statement of reasons and furnish it to the person who requested it.
  • (3): If the decision-maker is of the opinion that the person is not entitled to make the request, then within 28 days that person may give notice of this in writing; OR apply to the Federal Court of the Federal Magistrates Court for an order declaring that the person was not entitled to make the request.

Refusal of Reasons

  • (5)(a): The request was not made within 28 days of a decision recorded in writing, OR
    • (b): In any other case, the request was not made within a reasonable time.

Exceptions

  • (11): I.E. Circumstances in which reasons don’t have to be given!
    • (a): A decision for which reasons are available under s 28 of the AAT Act; OR
    • (b): A decision that includes findings of fact, a reference to the evidence or other material on which those findings were based and the reasons for the decision; OR
    • (c): A decision which is included in any of the classes of decision set out in Schedule 2: ->
      • Sch 2: Decisions relating to defence forces, intelligence operations, aircraft design trade secrets, diplomatic and consular privileges, the administration of criminal justice and civil courts, monetary and financial matters, public service employment and remuneration and Migration Act matters.
      • Reason for excluding public service promotions (like in Osmond): we don’t want ADJR to become court where people can complain about their conditions. There is already avenue for this for public services. Also ADJR is not a mechanism to allow public sector people to do what people in the private sector cannot do (private sector employees do not have the advantage of knowing reasons for promotion)

Info Not Required To be Disclosed

  • S 13A – eg. info doesn’t relate to the person requesting it and the info was supplied in confidence/would reveal a trade secret/was furnished in compliance with a duty imposed by an enactment or would contravene an enactment that imposes on the person a duty not to divulge to other persons etc. see pg 13 back of green booklet.

Administrative Appeals Tribunal Act ->s 28 (AAT)(P.32[4] of the Study Guide)

S 28(1)

  • If a person makes a decision in respect of which an application may be made to the Tribunal for a review, any person entitled to apply to the Tribunal may, by notice given in writing to the person who made the decision, request a statement setting out:
  • The findings on material questions of fact, referring to the evidence on which those findings were based, and giving reasons for the decision.
  • The reasons must be provided within 28 days after receiving the request.
  • (5): Authorises the Tribunal to order further and better particulars of reasons, when reasons are given but are deemed inadequate.

Migration Act1958 (Cth) -> s 430: (P.33[5] of Study Guide)

  • (1): Where the Tribunal makes its decision on review, the Tribunal must prepare a written statement that set out the:
(a) Decision of the Tribunal on review; AND
(b) Reasons for the decision; AND
(c) Findings on any material questions of fact; AND
(d) Refers to the evidence or other material on which the findings of fact were based.
  • B/c this is a high-volume decision-making area, there can be template reasons = the same set of reasons being recycled. This is not necessarily a bad thing (bad = no individualised justice) in the right to context – there are humanitarian issues regarding withholding info from refugees; need to tell them ASAP so template reasons are effective here!

Acts Interpretation Act -> s 25D: (P.33[6] of Study Guide)

=>Where statute requires reasons but leaves it other sources to define the obligation, generic criteria is used

  • Where an Act requires a tribunal, body or person to give written reasons for a decision, whether the expression reasons, grounds or any other is used:=
    • The instrument giving the reasons shall also set out the findings on material qus of fact,
  • & refer to the evidence or other material on which those findings were based.

Minister for Immigration and Multicultural Affairs v Yusuf (2001) HCA(PP.33-35 [7] of Materials)

  • Q: Whether RRT was obliged to make findings on material questions of fact, AND IF the Tribunal was required to do so, THEN whether failure to do such was a ground for review by the Federal Court of Aust, under s 476 of the Migration Act 1958 (Cth), or under the Const.
  • Court held that: Not all findings of fact are reviewable -> only MATERIAL facts are (therefore Yusuf was unsuccessful).
  • Singh said they needed to be objectively material.
  • Therefore, inquiring whether duty has been performed requires examination of the whole of the tribunal’s fact-finding process.
  • Difficulty with the objective analysis in Singh as to what is a material fact (as evidentiary issues need to be looked at, which is not usually done by appellate courts).
  • Requires inquiry of the process of proper decision-making & the correctness of what was decided.
  • The Tribunal’s identification of what it considered material facts may demonstrate that it took into account some irrelevant consideration and didn’t account for some relevant consideration (=> and these are grounds of Judicial Review).
  • RULE: You cannot challenge what they consider to be material facts.

Content of a reasons statement

  • A reasons statement will be inadequate if review body is incapable of seeing from the reasoning the link b/w the outcome and the facts
    • This is b/c the objective of reason statement is to better enable a person to decide whether to initiate proceeding for judicial or tribunal review of a decision (Ansett Transport Industries). Also assists a tribunal or court to decide whether to set aside a decisions being reviewed.
  • Guiding principles for what constitutes an adequate reasons statement:
  1. Courts have to provide reasons because it is part of their common law duty and a legislative requirement – the scope of these two sources should be similar as they serve the purpose (Beale)
  2. The tribunal must set out the finding which it did make – must only set out findings on 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. i.e. doesn’t have to set out finding additional to what it actually made (Yusuf)

Scope of statutory duties to provide reason

  • S 13 ADJR Act states that a statement in writing must set out the finding on material questions of fact.
  • SEE PP 1062 FOR STATUTE PROVISIONS
  • The reasons must be intelligible (language that can be understood by parties) and reasonably deal with the substantial point that have been raised (Poyser)
  • Must disclose the intellectual process (Garrett)
  • Length of statement will depend on nature of decision and the time available to formulate the statement – the extent of the duty to give reasons is related to the function to be served by the giving of reasons (Health Practitioners)
  • The duty may involve tribunal setting out whether it rejected evidence/witness statements
  • Materiality refers to the findings actually made by the tribunal – doesn’t have to be imposed objectively (Yusuf)

L&B Linings - case

  • Where there is no explicit requirement to give reasons in statute, there may be an implicit requirement to do so.
    • To be found through statutory interpretation of that particular provision

Other

  • The statement of reasons does not have to be of any particular length, it simply has to address the material facts etc.
  • What sort of person do you need to be to obtain a statement of reasons?
    • Need to have standing – need to be able to commence proceedings etc
  • Although one doesn’t rule out the other, what facts do you consider in making an FOI request vs requesting a statement of reasons?
    • Often, a statement of reasons is preferable
      • Once an agency provides a statement of reasons, they can’t resile from it
      • However – consider retrospective validation etc
    • FOI is just a bunch of documents

Textbooks

  1. Reasons for decision
    • Casebook: [20.1.1]-[20.1.15], [20.2.1]-[20.2.8];[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.[9]
  2. Merits Review 1
    • Internal review: Casebook [4.5.9]-[4.5.14][10]
    • Australian administrative tribunals - an introduction: Casebook [1.3.1]-[1.3.5E], [3.2.20]-[3.2.25], [3.2.27]-[3.2.29], [3.2.36]-[3.2.41];[11]
    • Administrative Appeals Tribunal Act 1975 (Cth)[12]

References

  1. Textbook, p. 1051
  2. Textbook, p. 1055
  3. Textbook, p. 897
  4. Textbook, p. 32
  5. Textbook, p.33
  6. Textbook, p.33
  7. Textbook, p.33-35
  8. Casebook: [20.1.1]-[20.1.15], [20.2.1]-[20.2.8];
  9. 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.
  10. Internal review: Casebook [4.5.9]-[4.5.14]
  11. Australian administrative tribunals - an introduction: Casebook [1.3.1]-[1.3.5E], [3.2.20]-[3.2.25], [3.2.27]-[3.2.29], [3.2.36]-[3.2.41];
  12. Administrative Appeals Tribunal Act 1975 (Cth)
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