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Editors --- "Requirement to Give Reasons for a Decision" [2004] AdminRw 12; (2004) 56 Admin Review 62

Requirement to give reasons for a decision

One of the questions in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme[1] concerned the effect of a failure to fulfil a statutory requirement to give written reasons for a decision. Section 501G of the Migration Act 1958 requires the Minister to give written notice to a person whose visa has been cancelled, setting out, among other things, the reason for the decision. However, s. 501G(4) provides that ‘a failure to comply with this section in relation to a decision does not affect the validity of the decision’.

By a four–one majority the High Court held that the prosecutor could not use the failure to give reasons as a direct means for quashing the decision to cancel his visa.

As a matter of construction, s. 501G did not impose a step preliminary to a decision; it assumed that a decision had been made and imposed a duty with respect to notification of that decision. The prosecutor could seek a writ of mandamus and thus compel the Minister to provide reasons, but he had chosen not to do so. Once reasons had been provided it was possible that they might disclose an error that could attract prohibition to quash the Minister’s decision, but the interim step of using mandamus could not be bypassed.

In dissent, Kirby J held that ‘[i]n the circumstances, that failure [to give reasons] indicates that the decision was an arbitrary one made outside the decision-maker’s jurisdiction’.[2]

[1] [2003] HCA 56.

[2] [2003] HCA 56 at [66].

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