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Administrative Review Council - Admin Review |
This section examines four topics—statements of reasons by administrative decision makers, the nature of merits review, the role of administrative decision makers in judicial review proceedings (the Hardiman principle), and standing. The topics are discussed briefly in four separate and thought-provoking pieces from members of the practising profession and from a leading academic in the area of administrative law.[1]
Stephen Lloyd SC and Donald Mitchell[2]
The essential requirement of a statement of reasons is truth—to convey the actual reasons of the decision maker. When referring to an obligation to give reasons in the Migration Act 1958 (Cth), McHugh, Gummow and Hayne JJ said:
It requires no more than that the Tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make, and then set out, some findings additional to those which it actually made … A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that [the provision] obliges the Tribunal 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.[3]
It sounds simple enough. And yet there are a number of circumstances in which, for the reasons explained shortly, hazards or difficulties arise in achieving this objective.
A requirement to provide a statement of reasons advances a number of different objectives, among them that the statement:
• provides a measure of governmental transparency • is capable of creating a certain rigour in decision making to promote critical thinking and improved decision making (through exposure to criticism and review)[4] • empowers people aggrieved by decisions to find out why the decisions were made and, if still aggrieved, can assist in making any decisions whether to seek to exercise rights of review in either merits review tribunals or courts[5] • where review rights are exercised, informs the body carrying out the review of the reasons, which can be important for merits review bodies as well as courts performing judicial review. A statement of reasons greatly improves the effectiveness of judicial review and thereby ensures that government decision making is more likely to proceed in accordance with the law.
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs the Court said, in relation to the reasons of the tribunal, ‘The detailed exposure by the Tribunal of its reasoning processes was not criticised and represented in itself a praiseworthy method of fulfilling the duty to give reasons’.[6] As it turned out, the reasons clearly revealed error to the High Court.
It is well settled that, as a matter of judicial duty, a judge in the first instance has an obligation to provide reasons for a judgment.[7] Yet there is no common law obligation on an administrative decision maker to provide reasons.[8]
Statute has to an extent sought to redress this shortcoming. There are, for example, limited rights to reasons provided by s 28 of the Administrative Appeals Tribunal Act 1977 (Cth) (and see s 37(1) of that Act). In most cases, however, in the Commonwealth context the right to a statement of reasons and the obligation to provide one are created by s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). This note focuses on s 13 of the ADJR Act.
With some exceptions, s 13 permits any person who is aggrieved by a decision that is reviewable by the Federal Court or the Federal Magistrates Court under the ADJR Act to ask the decision maker to furnish in writing within 28 days a statement setting out their findings on material questions of fact and giving reasons for their decision. A corresponding obligation is placed on decision makers to provide the statement (again with exceptions).
There are of course a great many other statutes that oblige decision makers to provide a statement of reasons in respect of particular powers; the content of such statements is largely determined by s 25D of the Acts Interpretation Act 1901 (Cth).
The Administrative Review Council has prepared a number of guidelines on the preparation of statements of reasons. Among the Council’s publications are Practical Guidelines for Preparing Statements of Reasons (revised in November 2002) and the accompanying commentary and, more recently, the booklet Decision Making: reasons in the best-practice guide series (August 2007). These publications set out clearly and concisely what is expected of decision makers by s 13 of the ADJR Act.
Notwithstanding these considerable and important steps taken in relation to the provision of statements of reasons, there remain some aspects that might be improved by further consideration and possible reform.
The general position relating to decisions to which s 13 of the ADJR Act applies is that there is no obligation to provide reasons until a request is made. A request can generally be made within 28 days of receipt of the decision, and a further 28 days is generally allowed for the provision of the statement of reasons. It follows, then, that there can be a material lack of contemporaneity between the date of the decision and the time when the statement of reasons is prepared. The Administrative Review Council’s Practical Guidelines for Preparing Statements of Reasons observes that it is ‘best practice’ (and by inference not mandatory) to prepare statements of reasons at the time of the decision.
Putting aside circumstances in which detailed notes have been made and kept when the decision was actually made, there is a real risk—even with conscientious efforts to be accurate—that the statement of reasons will not record the decision maker’s actual reasons.
These difficulties associated with reflecting the actual reasons can be exacerbated in circumstances where the fact that a request has been made puts the decision maker on notice that the decision might be subject to some form of review. It is only human for a decision maker to want to provide the ‘best possible’ reasons for the decision in fact made. But, unfortunately, the best possible reasons might not have been the actual reasons. This is perhaps less crucial if the review to be carried out is merits review and the statement of reasons plays more the role of a submission to the next tier of decision making. If, however, the review being mooted is judicial review, the provision of a statement of reasons that does not reflect the actual reasons presents a threat to the rule of law.
This problem can be aggravated if the decision maker seeks help from colleagues in positing a statement of reasons. Unless those colleagues were involved in the actual decision making, it is not clear how they would be able to help with the preparation of a statement of reasons. It might be appropriate for the Administrative Review Council to consider whether rules or guidance should be given in relation to seeking such assistance.
Perhaps a more problematic practice—although the extent to which it occurs is unclear—arises when decision makers seek to have ‘draft’ statements of reasons ‘settled’ by legal advisers. It is difficult to see how this practice is designed to reveal the actual reasons of the decision maker. The imposition of legal professional privilege further serves to prevent transparency. It might be appropriate for the Council to consider the extent to which this practice should be allowed and whether legal professional privilege in such cases should be maintained. The Council might also want to consider whether recommendations should be made to professional bodies about whether it is appropriate for barristers or solicitors to provide advice on whether ‘draft’ statements of reasons should be amended to remove apparent legal errors.
A different question arising from the ex post facto nature of the s 13 obligation emerges when the original decision maker is no longer available to provide the statement of reasons. This could occur, for example, because the decision maker has left or been removed from office, has died, has become unfit for duty or has retired. It would be a real detriment to the aggrieved person if a statement of reasons could not be provided at all. Putting aside again circumstances in which detailed notes have been made and kept when the decision was actually made, however, it is not clear how such a statement can provide the actual reasons for the decision made. The Council might want to consider whether in such a case the person responsible for the area when the request is received could give their reasons for the decision made or, if that person is of the view that a different decision should have been made, be empowered to make the different decision and provide reasons for it. In this way any review will proceed on the basis of a set of actual reasons for what is the current decision.
Another difficulty arising from the ex post facto drafting of statements of reasons emerges when decisions are made by senior decision makers such as ministers. When decisions are made following consideration of submissions to the minister that are written in neutral terms so as to allow a range of findings, it will often not be possible to determine from the decision made what the findings and reasons were. The Council might want to consider whether any administrative reforms would improve the recording of ministerial (and similar) reasons at the time of decision making to ensure that accurate statements of reasons can be provided if they are sought. The kinds of difficulties that can arise were exemplified in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme.[9]
Of course, in considering what, if any, reforms should take place, regard will need to be had to the very different kinds of decisions covered by s 13. It could be that a ‘one-size’ solution will not fit all in respect of some of these more specific concerns. Section 13 covers decisions:
• that will be of interest to an individual only—for example, entitlement to a subsidy or payment—and that are liable to be challenged only if the application is refused • that affect the public interest and might be liable to challenge regardless of whether the application is granted or refused—for example, decisions on whether or not to grant approval to a proposed action under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) that affects a matter of national environmental significance • that are made in circumstances where the agency involved is producing hundreds of thousands of decisions a year • that are made in circumstances where the agency or decision maker makes a handful of decisions a year • that are made where there is a right to full merits review • that are made where judicial review only is available.
A further area where difficulties can arise is when committees are the decision makers preparing statements of reasons. Although there is probably a requirement that a committee provide reasons under s 13 (where applicable), the form the reasons should take is not clear. How, for example, should a committee go about ensuring that the reasons are the reasons of all the members of the committee? Must all committee members approve and settle the statement of reasons? And what happens when there is dissent among committee members about what the reasons were? Section 13 leaves these questions unanswered.
The difficulties are, of course, exacerbated when the reasons need to be provided some time after the decision was made. It is quite likely that membership of the committee will have changed, thus making the provision of actual reasons more difficult.
There is also a question about how a decision maker goes about proving that a statement of reasons represents their real reasons for a decision. There is doubt, for example, about the evidentiary status of statements of reasons under s 13 of the Act in circumstances where the statement has been prepared after the decision was made. In Minister for Immigration and Ethnic Affairs v Tavelli[10] the Full Federal Court was considering an appeal from a decision of Wilcox J to reject the tender by the minister of a statement of reasons prepared more than a month after the relevant decision was made. All three judges dismissed the appeal on the basis that admission of the statement of reasons would not have affected the outcome of the proceedings, but only French J held that the statement should have been admitted. Davies and Hill JJ, on the other hand, held that Wilcox J was correct in rejecting the tender, largely for the reason that a self‑serving statement made after the event is not normally admissible at the hands of the person who made it.
These concerns would, it is submitted, be heightened in circumstances where, in preparing the reasons the decision maker has been assisted by another person, particularly a lawyer. It could be that, if more rigorous requirements were imposed to ensure that reasons were the actual reasons of the decision maker, it would be appropriate to make special provision for the reasons’ admissibility. There are, of course, countervailing considerations that suggest that an affidavit would be a preferable form of evidence if the reasons are not contemporaneous or are disputed.
Section 13 of the Administrative Decisions (Judicial Review) Act aims to promote the integrity of the administrative decision-making and judicial review processes. Its ability to meet that objective, however—in terms of both the decisions to which it does and does not apply and the manner in which it is being implemented—requires reconsideration. This paper touches on only some of the difficulties presented.
[1] The pieces were compiled and reviewed in December 2008 by Melissa Perry QC, a member of the Administrative Review Council.
[2] Both members of Sixth Floor, Selborne/Wentworth Chambers, Sydney
[3] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 346.
[4] Department of Foreign Affairs and Trade v Boswell [1992] FCA 321; (1992) 36 FCR 367, 377.
[5] Burns v Australian National University [1982] FCA 59; (1982) 40 ALR 707, 715.
[6] [2006] HCA 63; (2006) 228 CLR 152, 159.
[7] Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430. 441.
[8] Public Service Board of New South Wales v Osmond (1986) 159 CLR 656, 662.
[9] (2003) 216 CLR 212. See especially 227.
[10] [1990] FCA 169; (1990) 23 FCR 162.
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URL: http://www.austlii.edu.au/au/journals/AdminRw/2010/9.html