Blind justice: the pitfalls for


THE FORMULATION OF REASONS



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THE FORMULATION OF REASONS

  1. In the Commonwealth context most decision-makers can be required to give reasons48. The approach taken to judicial review by Australian Courts reflects an awareness of the boundaries of judicial review49. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang50 Brennan CJ, Toohey, McHugh and Gummow JJ said:

“… the reasons of an administrative decision maker are meant to inform and not be scrutinized upon by over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.”


  1. Various cases provide some guidance as to the content of reasons51. It may not be an error for the decision-maker to fail to discuss why contrary evidence was not accepted or to fail to discuss every conflict in the evidence in its reasons52.

  2. In Minister for Immigration Multicultural and Indigenous Affairs v Yusuf 53 it was held that it was sufficient if the decision-maker sets out its findings “…on those questions of fact which it considered to be material to the decision and to the reasons it had for reaching that decision”.54 This process focuses on the subjective thought processes of the decision-maker. It also “…entitles a court to infer that any matter not mentioned … was not considered by the Tribunal to be material”.55 That may reveal the presence of a jurisdictional error such as taking into account an irrelevant consideration or not taking into account a relevant consideration.

  3. In Public Service Board of NSW v Osmond56 the High Court emphatically held that at common law, an administrative decision-maker has no obligation to give reasons. However, just as in other areas of procedural fairness, this may not be an immutable truth. A strong Privy Council held in Stefan v General Medical Council57 that there had been a trend in the law toward an increased recognition of the duty on decision-makers of many kinds to give reasons. Their Lordships held that the quasi-judicial character of the General Medical Council, and its authority to affect the right of doctors to practice medicine who appeared before it, gave rise to an obligation at common law on the decision-maker to give reasons notwithstanding the absence of any statutory requirement58.

  4. But, in many non-federal contexts there is no statutory requirement to give reasons. However, as Dixon J noted in Avon Downs Pty Ltd v Federal Commissioner of Taxation59 this may not immunize decisions from judicial review:

“But it is for the commissioner, not for me, to be satisfied of the state of the voting power at the end of the year of income. His decision, it is true, is not unexaminable. If he does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.”


  1. That leads into the question of irrationality as a ground for review. Reasons can sometimes be very revealing in that regard, though, as Dixon J showed, the absence of reasons is not fatal to such a conclusion being open on judicial review.




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