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Martin, Wayne --- "The Decision-Maker's Obligation to Provide a Statement of Reasons, Fact and Evidence. The Law" [1999] AdminRw 6; (1999) 51 Admin Review 19


THE DECISION-MAKER'S OBLIGATION TO PROVIDE A STATEMENT OF REASONS, FACT AND EVIDENCE. THE LAW

Wayne Martin QC[*]

This article is an edited text of a speech presented at the Tribunals Conference of the Australian Institute of Judicial Administration, on 10 September 1999. The article represents part of the Council's work on improving the quality of reasons provided by primary decision-makers. The Council intends to release practical guidelines to assist in the production of statements of reasons in the near future.

Introduction

I am delighted to represent the Administrative Review Council at this session of the AIJA's Tribunals Conference. I am also particularly pleased to be addressing the issue of decision-makers' obligations in relations to statements of reasons, fact and evidence.

These statements play a fundamental role in the Commonwealth's administrative review system. They also form an important part of the Council's new focus on improving the quality of primary decision-making.

About the Administrative Review Council

The Administrative Review Council was established as an advisory body, providing advice to the Government on strategic and operational matters relating to the Commonwealth system of administrative review.

On the occasion of our twentieth anniversary, in 1996, the Council undertook a re-examination of its priorities. It was decided that renewed emphasis should be placed on, amongst other things:

• enhancing government accountability by improving the quality and processes of primary decision-making;

• providing assistance, policy advice and training to decision-makers; and

• monitoring the work of tribunals and primary decision-makers to ensure that their activities and approaches are consistent with the values and principles of administrative law.

The preparation and provision of statements of high quality reasons, fact and evidence, which I will now refer to simply as statements of reasons, falls firmly within the new focus of the Council.

The benefits of reasons

Several factors lead to this conclusion. First, the practice of providing statements of reasons has the potential to improve the quality of primary decision-making.[1] In particular, the possibility of disclosure of the decision-making process may encourage decision-makers to reflect more carefully on their task,[2] and facilitate intra-agency quality assurance processes.[3]

Secondly, providing statements of reasons can be seen as part of a general due process requirement. In many cases the very provision of reasons enables persons affected by a decision, whom I shall call applicants, to understand why a decision was made. They may even be persuaded by the statement that the decision was justified. In other words, the practice of providing statements of reasons can, in many cases, satisfy an applicant's sense of justice.[4]

Thirdly, statements of reasons assist applicants in their consideration of whether to exercise their rights of review or appeal.[5] Statements of reasons are able to do this by requiring the decision-maker to explain their decision, which may, in turn, help the applicant in identifying errors of law or unwarranted findings of fact.

Fourthly, and most closely to most of your hearts, statements of reason assist tribunals and courts in providing merits and judicial review. They do so by exposing the factual material on the basis of which the decision was made, the considerations which were taken into account, and the procedural steps taken by the decision-maker.[6]

Finally, the practice of providing statements of reasons may promote public confidence in the administrative process by disclosing the reasoning process of decision-makers to the public.[7] The practice also provides the wider public, and government agencies, with examples of how the law is applied in particular fact situations.[8]

All these factors make statements of reasons important to applicants, to merits review tribunals, and to the administrative law system in general. It is, therefore, important that agency practice in providing statements of reasons is of a very high standard.

The Council’s new guidelines for providing statements of reasons

In view of its focus on primary decision-making, the Council is currently devising a booklet for primary decision-makers on how to prepare statements of reasons.[9] This booklet will update and replace a memorandum issued by the Council many years ago.

The booklet aims to provide a succinct, user-friendly set of guidelines on preparing appropriate statements of reasons, based not only on what the Council considers to be the desirable policies, but also on the terms of relevant Commonwealth legislation, and taking account of court and tribunal decisions.

It is the Council's hope that these guidelines will help not only primary decision-makers, but also be of assistance to tribunals in their work, by providing a standard for the production and content of statements of reasons. A framework, so to speak, of what tribunal members should expect from primary decision-makers.

My paper reflects that framework, and is intended to demonstrate what tribunal members should expect from statements of reasons before them, following from the obligations that the Council sees as falling on primary decision-makers.

The eight central questions that a decision-maker should consider

The booklet takes a broad approach to a decision-maker's obligations in regards to statements of reasons. The Council has identified eight questions of which decision-makers should be mindful when preparing their statements.

These questions, and the way they are presented in the booklet, are designed to lead the decision-maker through the decision-making process, forming a checklist, as it were, for providing statements of reasons.

The eight questions or checkpoints are:

• One, does the decision-maker have an obligation to provide a statement of reasons?

• Two, even if an obligation exists, can the decision-maker refuse to provide a statement of reasons?

• Three, assuming an obligation, what does the decision-maker need to show in the statement of reasons?

• Four, what should the decision-maker do if other or better reasons are identified after the decision is made?

• Five, how should a statement of reasons be prepared?

• Six, what should the decision-maker do where recommendations or reports are used, and where submissions are made, in coming to the decision?

• Seven, how does the decision-maker deal with instances where confidential information has been used?

• And finally, question eight, is the statement the decision-maker prepared an adequate statement?

The substance of the booklet provides practical guidelines for how decision-makers should answer these questions. Hopefully, if decision-makers work through the checklists and give reasonable consideration at all points, the outcome will be high quality statements of reasons.

I would like to spend most of the time we have left, giving you an overview of the law and policy, decision-makers should consider in answering each of these eight questions.

1. Does the decision-maker have an obligation to provide a statement of reasons?

I'll begin with the first and central question of determining whether or not a decision-maker has an obligation to provide a statement of reasons.

Such an obligation will arise out of specific legislation. There is no obligation to provide reasons at common law. And, generally speaking, the legislative obligation will arise where:

• there is a right of merits review by the Administrative Appeals Tribunal ('AAT'), and the applicant entitled to initiate review proceedings requests a statement of reasons; or

• where there is a right of judicial review in the Federal Court; and, finally

• where the legislation which confers the power to make the decision requires that the decision-maker gives reasons when notifying the applicant of the decision.

For the purposes of this session I will confine my comments to the obligations arising out of the Administrative Appeals Tribunal Act 1975 ('AAT Act').

In addition to specifying when the obligation to provide reasons arises, the AAT Act also specifies how applicants should be notified of their right to reasons, how requests should be made, and sets certain time limits.

Notification of right to request reasons

In most cases, section 27 of the AAT Act requires decision-makers to give any person whose interests are affected notice of the making of the decision and the right to have the decision reviewed.

Requirement that request be made in writing

As regards making a request for a statement of reasons, section 28 of the Act provides that such a request need not be formal. A person may make the request in some informal letter or other means of communication. The only requirement is that the request be made in writing.

Time limits

There are certain time limits imposed upon applicants for statements of reasons. The time limit applicable depends on the mode of notification of the decision.

For example, if an applicant received the decision in writing, set out in a document provided to them, that applicant has 28 days to request a statement of reasons.

In any other case (for example, where the decision is only communicated verbally) the requirement is that the applicant must make the request within a reasonable time.

The definition of what constitutes a 'reasonable time' is not settled. The determination of what is a reasonable time will depend on the circumstances of the case and the plausibility of any explanation provided for delays in requesting reasons.[10]

There is also an ongoing debate in the courts as to whether courts have a residual discretion not to make a declaration favourable to the applicant, even where the request was made within a reasonable time.[11]

Just as there are time limits for a person making a request for a statement of reasons, so there are time limits imposed on the decision-maker. Decision-makers must provide the statement of reasons as soon as practicable, and no later than 28 days after receiving a request.[12]

2. Can the decision-maker refuse to provide a statement of reasons?

Having considered whether the obligation to provide a statement of reasons arises, the next question that the decision-maker needs to address is whether he or she can, or must, refuse to provide the statement.

There are several grounds, upon which a decision-maker can refuse to provide a statement of reasons. They should be reasonably self-explanatory given the previous discussion of how an obligation arises. Amongst them are:

• situations where the person requesting the reasons is not entitled to them,[13] for example, where the applicant is not a person affected by a decision;

• cases where the decision for which review is sought is not reviewable by the AAT;[14]

• instances where the decision itself included an adequate statement of reasons;

• situations in which the request was not made in writing;[15] and

• cases where the request was made outside applicable time limits.[16]

A decision-maker may legitimately refuse to provide a statement of reasons in two circumstances.

First, where other legislation overrides the obligation to provide reasons.

Secondly, where the Attorney-General issues a certificate that reasons not be provided.

In relation to the other legislation exemption, there are instances where other legislation overrides the obligation imposed by the AAT Act. Section 14ZZB of the Taxation Administration Act 1953, for example, states that the right of an affected person to a statement of reasons does not apply in relation to a reviewable objection decision.

In other circumstances, certain information, which is relevant to a statement of reasons, may be the subject of a certificate issued by the Attorney-General. Such certificates may be issued where disclosure of the information would be contrary to the public interest.

Relevant heads of public interest in this context include:

• circumstances in which disclosure of the information would prejudice the security, defence or international relations of Australia;

• cases in which disclosure of the information would involve the disclosure of deliberations or decisions of Cabinet or a member of Cabinet; or

• instances in which there is some other reason, specified in the certificate, which would form the basis of a claim for public interest immunity.[17]

When the Attorney-General has issued a certificate, the decision-maker may still prepare a statement of reasons, but is not required to include in that statement any matter with which the certificate was concerned.

In some cases the decision-maker may elect not to provide a statement, because without the information the subject of the Certificate of the Attorney‑General, the statement would be misleading.[18] In such cases the decision-maker must notify the applicant, giving reasons for not providing the statement.[19]

In all cases where the decision-maker considers that an applicant is not entitled to a statement of reasons, they must give notice of that opinion within 28 days of the request for a Statement.[20] The decision-maker might also apply to the Federal Court for a declaration to that effect.[21]

The applicant who is refused a statement of reasons, can apply to the AAT for a determination of whether or not they are, in fact, entitled to a statement.[22]

It is important for decision-makers to appreciate the positive advantages which often flow from the provision of a statement of reasons and to which I have earlier referred. If those advantages are recognised, it is to be hoped that the legal capacity to decline to give a statement of reasons will not of itself lead a decision‑maker to decline a request unless there are sound reasons for doing so.

3. What does the decision-maker need to show in the statement of reasons?

If we assume that an affected person has a right to a statement of reasons, and assume that the decision-maker has no valid ground for refusing to provide one, the next question that arises is: what information should the statement contain?

The statement must have three core elements. It must contain:

• the findings made by the decision-maker on material questions of fact;

• references to the evidence or other material on which those findings of fact were based; and

• the real reasons for decisions.

Findings on material questions of fact

The basic rule is that the decision-maker does not have an obligation to set out all findings of fact, but must include those facts that were relied upon in coming to the decision. Further, if a matter was considered, then all the findings of fact made in relation to it must be set out.

Courts often acknowledge that statements of reasons are generally prepared by administrative decision-makers, and not by lawyers. They, therefore, recognise that the fact that a statement does not set out findings on a particular matter, does not necessarily mean that no such finding was made.[23]

However, if a statement of reasons does not set out findings of fact on a matter, the courts have, on occasions, drawn the inference that the decision-maker did not consider the factual issue to be material.[24]

The reasoning process a decision-maker goes through in order to make findings of fact will often be exposed by the statement of reasons. In some cases, the reasoning process is such that a material fact is established directly by the evidence or other material.

In other cases the decision-maker must infer the existence of a material fact from other facts which are, in turn, established by other evidence or material. In these cases, the decision-maker will usually find it necessary to specify those other facts and the process of inference, so as to provide an adequate statement of how the decision was made.

Evidence or other material on which those findings of fact were based

Findings of fact obviously do not materialise out of nowhere. They are arrived at through an exercise in judgment, a weighing and sifting through various pieces of evidence, and the drawing of conclusions.[25] Which brings us to the second core element of the content of statements of reasons: that is, reference to the evidence or other material on which findings of fact are based.

This evidence does not need to be set out in detail. The decision-maker may simply refer to it, provided that the reference made is sufficiently specific to identify what is referred to.[26]

However, it is important that statements of reasons do not simply give an account of what evidence was considered. They should state whether the evidence was accepted or rejected, and whether any findings were made as a result of it.[27]

Finally, where there is conflicting evidence, the statement of reasons should specify those items of evidence, and give reasons for preferring some and rejecting other items.[28]

The real reasons for decisions

The third core element of a good statement of reasons is that all the real reasons should be stated.[29] This means that the statement should contain all the steps involved in the reasoning process, and facts should be linked to ultimate decisions. Essentially, the decision-maker must create a document that enables the applicant to understand how the decision was reached.

The decision-maker should indicate the extent to which, and how, policy statements and guidelines were taken account of in the decision-making process. Further, they must specify how the reasoning process took account of relevant considerations.[30]

The decision-maker should also refer to relevant legislation and case law. Both legislation, and the decisions of courts and tribunals may identify essential preconditions for the exercise of decision-maker's powers.

Thus, to enable an applicant to understand the legal framework in which the decision was made, the decision-maker must draw to attention relevant law in the statement of reasons. The detail required depends on the particular case and decision.[31]

In all cases the decision-maker should identify and express the relevant statutory requirement or test. They should do this in terms that do not simply recite the formal wording of the legislation.[32] The same principle applies to explaining legal principles derived from case law.[33]

Expectations of reasons prepared by lawyers v lay people

Courts draw distinctions between statements of reasons prepared by lay decision-makers and reasons prepared by legally qualified persons and will be readier to draw adverse inferences from the particular words used in the latter case.

Similarly, a court will expect more of tribunals, in particular those constituted by members with legal qualifications, than of primary decision-makers.[34]

4. What should the decision-maker do if other or better reasons are identified after the decision is made?

As the decision-maker prepares the statement of reasons, there may be occasions where other or better reasons are identified after the decision has been made. It may be that new reasons, evidence, or facts have come to light in the time between the decision being made, and the statement being requested. Thus the fourth question I mentioned, what should a decision-maker do in these circumstances?

As a general rule, new reasons, facts or evidence, which appear more desirable to the decision-maker, should not be substituted.[35] Nor should the statement be used to provide a retrospective justification for a decision that may be challenged.

Rather, if a decision-maker discovers an error in the original decision, the decision should be reconsidered, and a new decision given.[36]

Similarly, where a decision-maker finds that a different decision would be preferable, it is desirable that the decision be withdrawn, and a new decision given.

However, in situations where the decision-maker considers that the original decision is the preferable one, but further or better reasons appear than those relied on at the time of the decision, a statement of those further reasons should be given separately from the actual reasons for the decision.

In such circumstances the decision‑maker should be careful to clearly distinguish between the reasons for the decision taken at the time, and the matters subsequently taken into account. Otherwise, discrepancies between reasons given at the time the decision was communicated to the applicant, and reasons provided in the statement, may be used to draw the inference that the decision-maker did not carefully consider the obligation imposed by the legislation.

5. How should a statement of reasons be prepared?

Having considered what information a statement of reasons should contain, I will now turn to how it should be prepared. Evidently there can be no one blueprint for statements of reasons.[37] However, in the booklet, the Council does provide guidelines on issues relating to:

• the language and length of statements; and

• the preparation of draft statements.

Language

As regards the language that is desirable in statements of reasons, the decision-maker should always use language intelligible to the lay person.[38] The expression used should be clear, unambiguous and avoid vague generalisations.

It is also very important that the decision-maker bears in mind the potential audience for the statement. In particular, they should be mindful that statements are written for the benefit of applicants, and not with a view to withstanding scrutiny by a tribunal or court. In fact, where that appears to be the case, the Federal Court tends not to give great weight to the statement.[39]

The decision-maker should also be aware that statements of reasons potentially have wider audiences than simply the applicants, the tribunals or courts. Therefore, they should be written so that they are intelligible to persons other than the parties.

Length

As for the appropriate length of statements, this will necessarily depend on the nature and importance of a decision, its complexity, and the time available to formulate the statement. Nevertheless, a statement for a comparatively simple decision may need to be only one or two pages long.[40]

Preparation of draft statements

The Council considers that it is best if statements of reasons are prepared at the time of the decision. Certainly, if it is evident that a request may be made for a statement of reasons, the decision-maker should at least make notes at the time of the decision.

I would also like to note that the practice of some agencies of another officer preparing draft statements of reasons by working from the case file, without instructions from the original decision-maker or a delegate, has been considered undesirable by the Federal Court.[41]

6. What should the decision-maker do where recommendations or reports are used, and where submissions are made, in coming to the decision?

Often decision-makers may require reports to be produced, or submissions to be made, before they can come to a decision. They are then faced with the question of how to incorporate these into the statement of reasons.

Recommendations and reports

Recommendations and reports must be incorporated by reference in the statement of reasons to the extent that the decision-maker relied upon them.

And, when a decision-maker relies on recommendations or a report, prepared by someone other than the decision-maker, these must, in themselves, contain the three core elements of statements or reasons I discussed earlier: that is, findings on a material question of fact, reference to the evidence on which those findings were based, and reasons for the recommendations.[42] These three elements should be reflected in the statement of reasons.

Further, where a decision-maker differs from the report or recommendation, the statement of reasons should explain how and why this is the case.[43]

Submissions

Where a person has made submissions on a material issue of fact, the statement must deal with the submissions, and indicate the weight which was attached to them.[44] The decision-maker must indicate why one submission was preferred and not another.[45]

Indeed, a failure to do so can lead a tribunal or a court to the conclusion that the representation was not taken into account and that the statement, for that reason, is inadequate.[46]

7. How does the decision-maker deal with instances where confidential information has been used?

The decision-maker must also ascertain whether any of the information provided in the statement of reasons was provided on a confidential basis.

If this is the case, and assuming that an Attorney-General's certificate will not be issued, the decision-maker should consider whether it is possible to prepare the statement without disclosing the confidential information.[47]

If this cannot be done, then in the case of reasons provided pursuant to a review by the AAT, the AAT may do all the things necessary to ensure that the information or the matter contained in the confidential document is not disclosed to any other person.

8. Is the statement adequate?

Having produced the statement of reasons, the decision-maker may finally wish to consider whether the statement is adequate. This brings me to the eighth and final question addressed in the Council's booklet.

Necessarily, an assessment of the adequacy of a statement of reasons must be made with reference to the purposes of the obligation to furnish reasons.

Thus, the Council considers that the crucial requirements in assessing the adequacy of a statement of reasons, are that it is an accurate reflection of the decision-making process; and that it enables an applicant to determine whether and how to challenge a decision.

If an applicant has been furnished with what they consider to be an inadequate statement of reasons, he or she can apply to the AAT for a further and better statement.

If the AAT then considers that the statement does not contain adequate findings on material questions of fact, or an adequate reference to the evidence or other material on which the findings were based or adequate particulars of the reasons for the decision, the AAT may make a declaration accordingly.

The decision-maker must then provide an additional statement containing better particulars in relation to the matters specified in the declaration.

Conclusion

That brings to an end the substantive part of my paper. I hope that it has provided you with an indication of what you can, and should, expect of statements of reasons. The importance of these statements cannot be under‑estimated. The Council hopes that its booklet of practical guidelines will have a continuing positive impact on their quality.


[*] Member, Administrative Review Council

Endnotes

1 PP Craig Administrative Law 3rd ed, 1996, p 311. For an example of a decision in which it was clear that representations had not been considered as required by the legislation, see Chapman v Tickner (1995) 55 FCR 316.

[2] D J Galligan Discretionary Powers 1990, p 267.

[3] Commonwealth of Australia v Pharmacy Guild of Australia (1989) 91 ALR 65.

[4] M Allars Introduction to Australian Administrative Law 1990, p 129.

[5] Ansett Transport Industries (Operations) Pty Ltd v Wraith [1983] FCA 179; (1983) 48 ALR 500 at 507 per Woodward J.

[6] Dalton v Commissioner of Taxation [1985] FCA 298; (1985) 7 FCR 382.

[7] Commonwealth of Australia v Pharmacy Guild of Australia (1989) 91 ALR 65.

[8] H Katzen ‘Inadequacy of Reasons as a Ground of Appeal’ (1993) 1 Australian Journal of Administrative Law 33 at 36.

[9] The booklet draws on the work of Ms Linda Pearson who was engaged as a consultant for the purposes of the project.

[10] Ho v King (1994) 34 ALD 510.

[11] Ho v King (1994) 34 ALD 510; cf. United Airlines v Department of Transport and Communications [1990] FCA 427; (1990) 26 FCR 598.

[12] Administrative Appeals Tribunal Act 1975 s 28(1), Administrative Decisions (Judicial Review) Act 1977 s 13(2).

[13] Administrative Appeals Tribunal Act 1975 s 28(1), Administrative Decisions (Judicial Review) Act 1977 s 13(1), (11).

[14] Administrative Appeals Tribunal Act 1975 s 28(1), Administrative Decisions (Judicial Review) Act 1977 s 13(1).

[15] Administrative Appeals Tribunal Act 1975 s 28(1), Administrative Decisions (Judicial Review) Act 1977 s 13(1).

[16] Administrative Appeals Tribunal Act 1975 s 28(1A), Administrative Decisions (Judicial Review) Act 1977 s 13(5).

[17] Administrative Decisions (Judicial Review) Act 1977 s 14(1); Administrative Appeals Tribunal Act 1975 s 28(2).

[18] Administrative Decisions (Judicial Review) Act 1977 s 14(2); Administrative Appeals Tribunal Act 1975 s 28(3).

[19] Administrative Decisions (Judicial Review) Act 1977 s 14(3); Administrative Appeals Tribunal Act 1975 s 28(3A).

[20] Administrative Appeals Tribunal Act 1975 s 28(1AA).

[21] Administrative Decisions (Judicial Review) Act 1977 s 14(3)

[22] Administrative Appeals Tribunal Act 1975 s 28(1AB), (1AC).

[23] Powell v Evreniades [1989] FCA 114; (1989) 21 FCR 252.

[24] Sullivan v Department of Transport (1978) 20 ALR 323; ARM Constructions Pty Ltd v Deputy Commissioner of Taxation (1986) 10 FCR 197; Faulkner v Conwell [1989] FCA 103; (1988) 21 FCR 41; Western Australia v Minister for Aboriginal and Torres Strait Islander Affairs (1995) 37 ALD 633.

[25] Ansett Transport Industries (Operations) Pty Ltd v Taylor (1987) 18 FCR 498.

[26] Re Palmer and Minister for the Capital Territory (1978) 1 ALD 183; Ansett Transport Industries (Operations) Pty Ltd v Taylor (1987) 18 FCR 498.

[27] Dodson v Minister for Immigration Local Government and Ethnic Affairs [1991] FCA 454; (1991) 31 FCR 451.

[28] Dennis Willcox Pty Ltd v Commissioner of Taxation (1988) 79 ALR 267; Australian Postal Corporation v Lucas [1991] FCA 612; (1991) 33 FCR 101.

[29] Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia [1996] FCA 1509; (1996) 67 FCR 40; Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20; (1979) 140 CLR 675.

[30] Allen Allen & Hemsley v Australian Securities Commission (1992) 27 ALD 296.

[31] Ansett Transport Industries (Operations) Ltd v Taylor (1987) 18 FCR 498.

[32] Ansett Transport Industries (Operations) Pty Ltd v Wraith [1983] FCA 179; (1983) 48 ALR 500; Koutsakis v Director-General of Social Security (1985) 10 FCR 42; Anderson v Australian Postal Commission [1993] FCA 211; (1993) 32 ALD 138.

[33] McAuliffe v Secretary, Department of Social Security [1991] FCA 268; (1991) 13 AAR 462.

[34] Dodson v Minister for Immigration. Local Government and Ethnic Affairs [1991] FCA 454; (1991) 31 FCR 451 at 465.

[35] Re Palmer and Minister for the Capital Territory (1978) 1 ALD 183.

[36] Minister for Immigration, Local Government and Ethnic Affairs v Taveli [1990] FCA 169; (1990) 23 FCR 162.

[37] H Katzen ‘Inadequacy of Reasons as a Ground of Appeal’ (1993) 1 Australian Journal of Administrative Law 33 at 38.

[38] Re Palmer and Minister for the Capital Territory (1978) 1 ALD 183.

[39] Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia [1996] FCA 1509; (1996) 67 FCR 40.

[40] Ansett Transport Industries (Operations) Pty Ltd v Wraith [1983] FCA 179; (1983) 48 ALR 500.

[41] Singh v Minister for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 638 at 640.

[42] Re Palmer and Minister for the Capital Territory (1978) 1 ALD 183; Dornan v Riordan (1990) 24 FCR 564;

[43] Peverill v Backstrom (1994) 54 FCR 410.

[44] Dennis Willcox Pty Ltd v Commissioner of Taxation (1988) 78 ALR 267; Lek v Minister for Immigration Local Government and Ethnic Affairs [1993] FCA 493; (1993) 45 FCR 418.

[45] Pharmacy Guild of Australia v Riordan (1989) 18 ALD 446.

[46] Chapman v Tickner (1995) 55 FCR 316.

[47] In Soldatow v Australia Council [1991] FCA 160; (1991) 28 FCR 1, the person seeking reasons had unsuccessfully applied for a writer’s fellowship. The statement of reasons, evidence and facts did not show how his work was considered to stand in relation to that of the successful applicants and, while acknowledging the difficulties, the Federal Court concluded that questions of confidentiality would not inevitably have been involved in disclosing the factors that were taken into account in his case and how his particular application was considered.


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