#7240 - Reasons For Decision And Freedom Of Information - Administrative Law

• The Commonwealth Administrative Review Committee (Kerr Committee) recognized that it was critical, for people to make an effective claim against the government, to be apprised of the reasons for that decision; and vice versa that an ‘aggrieved person’ should be able to apply for and receive reasons for that decision

  • These recommendations were heeded and are found in:

    1. s13 of the ADJR Act 1977

    2. s28 of the AAT Act 1975

• Deane J in Minister for Immigration v Pochi describes it’s fundemntal importance “[The Act effected a quiet revolution]...lowered a narrow bridge over the moat of executive silence”

• Giving reasons underpins the values of transparency and accountability which permeate administrative law:

  • It affords a person affected by a decision the opportunity to have this explained; they can then decide whether to exercise their rights of review/repeal in an informed manner

  • It can also help decision makers think more carefully about their task and take care in decision making.

  • Further it can help agencies identify principles and create standards to guide future decision making

ARC Best Practice Guide, Decision Making: Reasons

• McHugh JA in Soulemezis v Dudley (Holdings) stated the justification:

  • “When parties submit their dispute to a tribunal for adjudication they do so on the assumption that the dispute will be decided in accordance with rules”

  • They assume it will be decide by rules and principle which govern their conduct by ascertaining the facts.

  • To give effect to this a judicial decision must be recent decision arrived at by finding facts and applying principle. Decisions made arbitrarily cannot be judicial; the hallmark of judicial decisions is the quality of rationality

  • Without the articulation of reasons, judicial decisions cannot be distinguished from arbitrary decisions

  • The giving of decisions serves three purposes

    1. Enabling parties to see to which their arguments are understood/accepted as part of the basis of the judge’s decision

    2. The furtherance of judicial accountability

    3. Under the common law, courts not only resolve disputes but they formulate rules of application for future cases. Giving reasons enables practitioners/legislators/the public to ascertain the basis on which cases will be decided in the future

• The textbook writers pose the question on whether or not an obligation to prepare reasons should extend to all decisions – and the applicability of the cost/benefit approach considering that most decisions aren’t reviewed. Other important questions on p1258

• 1980s federal administrative law brought about radical changes by imposing general duties on certain administrative decision makers to provide reasons for their decisions (s13 ADJR Act, s28 AAT Act)

  • This is replicated in state/territory judicial review/tribunal legislation

  • Some statutes impose specific duties on decision-makers too; including rules relating to confidential information, procedures relating to who is entitled to statements of reasons etc.

• s13 of the ADJR Act provides that: one who is entitled to make an application to the FC or FMC under s5 in relation to the decision may request the decision-maker to furnish a statement in writing setting out findings on material questions of fact, referring to evidence on which findings were based and give reasons for it

• Reasons need not be given for ALL decisions under the ADJR Act including:

  • Decisions not covered by The Act – e.g. ones that aren’t ‘administrative’ in character

  • If reasons have already been given or the person has a right to a statement of reasons under the AAT Act

  • Decisions excluded under Sch 2 (relating to defence forces, intelligence operations etc. P1259)

• s13A: Reasons need not include information relating to personal/business affairs of a person which:

  • Was Supplied in confidence

  • Would reveal trade secrets

  • Was furnished in compliance with other legislation

  • Divulgence is prohibited by legislation

• s14 - Statements must not include information if the A-G certified the disclosure of which would be contrary to public interest because it

  • Would prejudice the security, defence or international relations of Australia

  • Would disclose Cabinet deliberations or decisions

  • Any reasons that could form the basis of a claim for non-disclosure in judicial proceedings (e.g. Crown privilege)

• s28 (AAT Act)– the right of reasons under this section applies to decisions reviewable under the Act and to persons with standing to appeal to the AAT. But like in the ADJR Act the decision-maker needn’t provide the statement if reasons have already been given, a certificate has been issued by the A-G etc.

• A number of similar provisions exist in other Acts (e.g. Administrative Decisions Tribunal Act 1997 (NSW) s 49

• The NSW Supreme Court Practice Note authorizes judges to require public bodies/officials to furnish reasons (findings of fact, evidence on which decision placed etc.); this has been held not to overturn Osmond (Whally v Commissioner of Police [2003] NSWSC)

• Osmond – HCA holds that there is no duty at common law, or rule of procedural fairness that requires administrative/judicial decision-makers to provide reasons for their decision (but such duties may arise in ‘special’ or ‘exceptional’ circumstances

  • In the particular case – the decision of a public service board in a promotions appeal case was not such a circumstance

• The general arguments in favour of requiring administrators to provide reasons include:

1. Instrumentalist arguments – the requirement to provide reasons for decisions encourages better/more rational decision making

   1. But it can be difficult to prove that decision-making is improved by this requirement

   2. It could also have the opposite effect – it may undermine good decision-making by encouraging standardised statements relying on previously accepted justifications rather than a full consideration of merits (Aronson, Dyer & Groves, Judicial Review of Administrative Action)

   3. It may also add to the cost and time involved in decision making (A, D & G)

2. Political Theory/Pragmatist – The requirement enhances government transparency and accountability and gives legitimacy to a decision by showing it wasn’t made arbitrarily and that the issues raised have been adequately considered (P P Craig, The Common Law, Reasons and Administrative Justice)

   1. But these are subject to countervailing political interests (the need to protect interests of national defence and security/information obtained in confidence/personal private information/certain commercial interests)

3. Procedural Fairness Arguments (contested; based on individual rights model of decision making) – as a matter of fairness there should be a duty to provide reasons so that affected people can decide whether it has been lawfully made, why they haven’t succeeded and whether there is grounds for appeal and to assess the strength should they do so. Without reasons, the review functions of courts would be frustrated.

These arguments also enhance accountability for government action by facilitating review/appeal (thus similar to II – same objections).

• But insofar as those who argue for reasons rely on fairness arguments to make reasons a substantive requirement – they have been rejected by the HCA since they confuse a duty to provide reasons subsequent to a decision with the procedural fairness requirement that persons should know the case against him/her before a decision is made