by robin burnett*

THE GIVING OF REASONS

By ROBIN BURNETT*

INTRODUCTION

In the exercise of discretionary power there is no general duty to give reasons in the absence of a statutory requirement. 1 This common law rule may be traced in part to a line of cases which.stand for the proposition that where the discretionary power of the administrator is conclusive as to the existence of the grounds for its exercise, the courts cannot scrutinise the reasons-any errors are within jurisdiction. For example in All croft v Lord Bishop of London2

the respondents argued that the reasons which the Bishop was required by the statute to state, disclosed irrelevant considerations. The House of Lords rejected an application for mandamus.

Then it was said that there was something he had considered which he ought not to have considered, and something he had not considered which he ought to have. and so he had not considered the whole circumstances and them only. It seems to me that this is equivalent to saying that his opinion can be reviewed. I am clearly of opinion it cannot be. If a man is to form an opinion, and his opinion is to govern, he must form it himself on such reasons and grounds as seem good to him ....

Then it is said why if his decisions cannot be reviewed is he to state his reasons? Lindley L.J. has given an excellent answer to this. It is that he may be under the necessity of forming a careful opinion. and one that will bear public examination. 3

At that point in time the judicial trend was against reviewing discretionary power but even then Herschell CJ indicated that if it could be shown that the decision-maker had not exercised his discretion at all then the court would interfere. However, the approach led to cases like Pure Spring Co Ltd v Minister of National Revenue4 where a decision made under discretionary power was challenged. Two earlier decisions under the legislation in which the Minister had given reasons had been successfully overturned. It was then decided that he should take decisions without providing reasons. The court held that he could lawfully adopt this course because Parliament had given him discretionary power. In the judge's view it followed that the court would not be able to make use of reasons if given. However, of the cases cited in Pure Spring Co in support of this approach either reasons had been given and it was the width of discretion which discouraged review, or in other cases, for example, R v The Bishop of London5 where no reasons were provided the court took the view that if bad faith could be demonstrated or if reasons were given the court would intervene to correct errors of law.

• LL B (NZ). LL M (Well); Senior Lecturer in Law. Australian National University. 1 R v Gaming Board{or Great Britain; Ex parte Benaim & Khaida [ 1970]2 QB 417. Contrast

cases where the decision is subject to an appeai-Pettitt v Dunklev [ 1971]1 NSWLR 376; Giris Pry Ltd v Commissioner of Taxation ( 1969) 119 CLR 365; Taylor v Public Service Board[ 1975]2 NSWR 278; Hurt v Rossa!! ( 1982) 43 ALR 252.

'[1891] AC 666. 3 Ibid 678. 4 [1947]1 DLR 501. '(1811) 13East419; 104ER433.

158 Federal Law Review [VOLUME 14

By 1983 the notion that broad discretionary powers are not susceptible of judicial review has been discarded. However, the related rule that in the absence of a statutory duty reasons cannot be required has been more difficult to overcome. Arguments that failure to give reasons constitutes a breach of natural justice have been rejected in favour of the proposition that it is enough if an opportunity is given to the aggrieved person to deal with adverse issues. 6

The position at common law has been described elsewhere. 7 A notable shift away from the rule against investigating reasons typified by the Pure Spring case was signalled by Padfield v The Minister of Agriculture, Fisheries and FoofiB -where reasons are voluntarily provided, these can be reviewed-although this leaves the difficulty that it could be argued that these were not the only reasons. 9 Refusal to give reasons may lead to the inference that there has been an abuse of power. 10 A related well known dispute concerned the resurrection of the remedy--certiorari for error of law on the face of the record-which allows the courts to avoid the argument that the error was within jurisdiction.

The use of certiorari to review for error of law on the face of the record was traced in R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw. 11

Since that judgment the jurisdiction had become a most valuable tool for judicial review, but the issue of whether the reasons should be part of the record was still in doubt. The decision in R v Knightsbridge Crown Court; Ex parte International Sporting Club (London) Ltd12 is therefore important for its forthright assertion of the principle that reasons form part of the record.

[T]he courts must adapt their procedures to modern conditions. In the last century the facilities available for recording spoken reasons were not comparable to those which exist today. Shorthand had only recently been invented and there was no electronic recording apparatus with which many courts are now equipped. This court can now rely with confidence upon a transcript of the oral judgment given by a lower court or tribunal as accurately setting out its reasons which may not have been the case I 00 years ago. Furthermore, the recent decision of the House of Lords in Reg. v Inland Revenue Commissioners, Ex parte National Federation of

6 R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [ 1952] I KB 338; R v Gaming Board of Great Britain; Ex parte Benaim & Khaida [ 1970]2 Q B 417; Taylor v Public Service Board [ 1975] 2 NSWLR 278; Jet 60 Minute Cleaners Ltd v Brownelle [ 1982] ACLD 590.

7 M Akehurst. "Statements of Reasons for Judicial and Administrative Decisions" ( 1970) 33 Mod L Rev 154; G A Flick, "Administrative Adjudications and the Dutv to Give Reasons-A Search for Criteria" [ 1978] Public Law 16; G D S Taylor, "Judicial Review of Improper Purposes and Irrelevant Considerations" ( 1976) 35 Cambridge L1 272: G D S Taylor, "Administrative Review: The Cuckoo Lays Another Egg" ( 1978) (unpublished paper delivered to the Royal Institute of Public Administration, Canberra, 29 August 1978); S Churches. "Natural Justice and Executive Discretion in Australia" [ 1980] Public Law 397.

8 [ 1968] AC 997; and see Kentucky Fried Chicken Pry Ltd v Gantidis ( 1979) 53 ALJR 478; J F Garner, "Administrative Law-A Step Forward?" ( 1968) 31 Mod L Rev 446; H Wade, "The Myth of Unfettered Discretion" (I 968) 84 LQR 166. See also Glenvil! Homes P(v Ltd v Builders Licensing Board ( 1983) 4 ALD 398 and Blackburn J in Sordini v Wilcox (Federal Court of Australia, 7 April 1983, unreported decision of the Full Court).

'Akehurst, supra n 7, 160 discussing Pure Spring Co Ltd v Minister of National Revenue [ 1947]1 DLR 501. Contrast with Minister of National Revenue v Wrights' Canadian Ropes Ltd [ 194 7] AC I 09 in which the Privy Council declined to accept argument that an undisclosed report justified a ministerial determination and overturned the determination on the basis that the facts shown in the evidence were insufficient to support it.

10 Eg Padfield v MinistercJ.f Agriculture, Fisheries and Food [I 968]AC 997, I 006-1007, 1032-1033, 1053-1054.

"[1951]1 KB 711. 12 [1981]3 WLR 640.

I 983] The Giving of Reasons 159

Self-Employed and Small Businesses Ltd. [ 1981] 2 W.L.R. 722, concerned with the remedy of mandamus shows that administrative law is in a phase of active development and that the judges will adapt the rules applying to the issue of the prerogative orders to protect the rule of law in a changing society. As Lord Diplock said, at p. 736: "Any judicial statements on matters of public law if made before 1950 are likely to be a misleading guide to what the law is today" ....

Although the old authorities do show a stricter approach to what constituted the "record," the modern authorities show that the judges have relaxed the strictness of that rule and taken a broader view of the "record" in order that certiorari may give relief to those against whom a decision has been given which is based on a manifest error of law. 13

This same approach can be seen in Glenvil/ Homes Pty Ltd v Builders Licensing Board14 where a refusal to order discovery was found to be an error within jurisdiction but was amenable to certiorari for error of law on the face of the record. In the circumstances of the case it was held that the notice of motion seeking discovery together with the reasons for the reserved decision refusing the relief constituted the record.

In summary, by 1983 the common law tools for judicial review combined with the courts' willingness to review discretionary power has allowed the courts greater freedom to investigate reasons but there is still a reluctance to require reasons for the exercise of discretionary power in the absence of a statutory duty to supply them. 15

The value of a duty to give reasons is variously described as encouraging consistency in decision-making, 16 as a means of controlling abuse of power 17

and as encouraging better quality in decision-making. 18 These explanations reflect the more fundamental justification for reasons-"lt is a fundamental requirement of fair play that parties ... should know at the end of the day why a particular decision has been taken". 19 ln international economic forums such as OECD the issue has been thought of sufficient importance to justify expert studies on the extent to which governments disclose reasons for decisions. International codes dealing with non-tariffbarriers set standards requiring the facts, decisions and reasons to be disclosed.~

The Australian administrative law reforms of the 1970's recognised that the statutory obligation to give reasons was a necessary ingredient of successful administrative review. Accordingly provisions were included in the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") and the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act"). Provision was also made, though of more limited nature in the Administrative Law Act 1978 (Vic). The notions of providing reasons is also to be found in the Ombudsman Act 1976 (Cth) ss 15(1 )(c)(ii), 15(2)(e).

I) Ibid 648-649. 14 ( 1982) 4 ALD 358. 15 Contrast the dissenting judgment of Lord Denning MR in Padfield. supra n I 0 (refusal to

supply reasons gives rise to the implication that there has been an abuse of power) with Jet 60 Minute Cleaners v Brownelle [ 1982] ACLD 590.

16 Merchandise Transport Ltd v British Transport Commission [ 1962]2 QB 173, 193. 17 G A Flick, Natural Justice-Principles and Practical Application ( 1979) Ch 3. 18 Franks Report (Cmnd No 218, 1957l. 19 Ibid para 3 5 I. !I EgThe Agreement on Interpretation and Application of Articles VI. XVI and XXIII of the

General Agreement on Tariffs and Trade, Aust TS 1981 No 28.


2 THE STATUTORY REQUIREMENTS FOR REASONS UNDER COMMONWEALTH ADMINISTRATIVE LAW REFORM LEGISLATION

In a 1978 paper Dr G D S Taylor, the first Director of Research of the Administrative Review Council, attempted an analysis of the requirement to give reasons contained in ss 28 and 37 of the AAT Act. 21 He described the new statutory duty imposed by the Act as "an aspect of administrative review which effects novel and radical change to the processes of administrative decision-making. " 22 In place of a general formula requiring the decisionmaker to provide reasons, which can cause argument about adequacy of reasons, the Commonwealth legislation laid down very specific requirements. These provisions (and s 13 of the Judicial Review Act) require the decisionmaker to formulate a statement in writing setting out the findings on material questions of fact, referring to the evidence on which these findings are based and the reasons for the decision. Section 37 requires that the decision-maker provide the AAT with every other document or part of a document that is in his possession or under his control and is considered by him to be relevant to the review of the decision by the tribunal.

Drawing on cases like Re Palmer and Minister for Capital Territory 23 and Sullivan v Department ofTransport24 Dr Taylor noted that the AAT saw all the three elements as of equal importance in achieving the aims of the statutory provisions and saw the statement of reasons as occupying a fundamental position in the administrative review structure.

The benefits to the citizen in the obtaining of reasons ... in our view are fundamental to the whole scheme of administrative review embodied in the Act. 25

Dr Taylor set out ten propositions which he thought the decisions of the AAT had established.

{a) Purpose of Reasons. The purposes of a statement of reasons are to inform the applicant fully and intelligibly how and why the decision was reached, to ascertain whether there has been any defect in the reasoning, and to enable him to exercise his option, should he wish to challenge the decision and, if so, to determine upon what grounds to challenge it.

(b) A statement of reasons must give the reasons for the decision and not other reasons or facts which may subsequently appear better.

(c) Evaluation of what is required in a given statement may be assisted by asking, "what had to be determined in order to reach the decision made?" The statement will be adequate if everything in answer to that question is set out.

(d) Three Elements. The Acts require that the material facts found be stated; the evidence or material upon which they are based be referred to, and the reasons for decision be given. All three parts are of equal importance.

21 Taylor, "Administrative Review ... ", supra n 7. 21 /bid I. D(l978) I ALD 183. 24 (1978) 20 ALR 323. 25 Taylor. "Administrative Review ... ",supra n 7. relied on three Australian cases: Re Palmer

and Minister for the Capital Territory ( 1978) I ALD 183; Re Salazar-Arbelaez and Minister for Immigration and Ethnic Affairs ( 1977) 18 ALR 36; Sullivan v Department o.fTransporl ( 1978) 20 ALR 333.

1983] The Giving of Reasons 161

(e) Where reports or recommendations have been sought or made in the process of decision -making, this must be stated and the facts, evidence or material, and reasons be set out or referred to where they were considered relevant or were relied upon in the decision reached.

(f) Where an applicant has advanced reasons in support of his view or has made submissions, the statement of reasons must state how each of those reasons or submissions was treated and resolved by the decision-maker.

(g) Facts. Material facts are those relied upon or considered relevant to the decision and all must be stated.

(h) Evidence. The evidence or material upon which the facts were based need not be set out but only be referred to in the statement, but all that is considered relevant must be referred to.

(i) Reasoning. Criteria used in reaching a decision must be set out and the weight ascribed to each criterion stated.

( j) As part of the reasoning, the process by which conclusions are deduced from the facts found and evidence or material, must be set out.

These propositions were developed in the Administrative Review Council Statement of Reasons: an Explanatory Memorandum. 26 In particular, this Memorandum introduced the notion that decisions could be reconsidered or replaced by better reasoned decisions. This is discussed below.

By 1983 it is clear that Dr Taylor's analysis has with modifications generally been accepted in principle by decision -makers. 27 For those who still find compliance difficult the Federal Court has indicated that compliance will be enforced. 28 It is therefore timely to undertake some analysis of the impact which his views have had on the discharge of the duty arising under ss 28 and 37 of the AAT Act and s 13 of the Judicial Review Act and the impact which his approach has had on the way in which the Tribunal and Federal Court have been able to exercise their powers of review.

One serious problem which has been exposed since Dr Taylor attempted the first "guidelines" is that of explaining to decision -makers how the statutory obligation is to be discharged. The 1979 Explanatory Memorandum and similar material supplied by government departments for guidance of officials is expressed in terms to be expected from a lawyer. However, it must be appreciated that the decision -maker will often be a relatively junior official and not a lawyer. Such an officer cannot obtain much assistance from explanation cast in terms which require him to provide "findings on material questions of fact". To tell him that "these are the conclusions reached on factual issues reached by a process of reasoning from the primary facts" is not helpful. Meaningful guidelines have to be provided for the assistance of such officers.

A "Reasons" in the AA T Jurisdiction In 1982 the AAT Act was amended to enable the Tribunal to review a

26 See D C Pearce. Administrative Law Service ( 1979) 5003-5012. 27 Cf Guidelines to Freedom of Information ( 1982) FOI Memorandum No 32, s 26 Notices.

Public Service Board Circular I 982/3 of 26 May 1982. 28 Toy Centre Agencies Ptv Ltd v Sflencer ( 1983) 46 ALR 351 in which Lockhart J spoke of

having to give directions to "flush out the true decision maker and the reasons upon which he relied when making his decision" (at 361 ).


refusal by a decision-maker to give a statement of reasons when requested to do so under s 28 and to review the adequacy of such a statement. 19 Problems confronting an applicant faced with constructive refusal or inadequate reasons are illustrated by the Toy Centre Agencies Pty Ltd v Spencer.})

The immediate point to note is that as 28 or s 37 statement can serve a dual function. This is often the first time that both the applicant and senior officers in the department concerned see the reasons for the decision. This is apparent from the terms of the 1979 Explanatory Memorandum.

15 When a decision is examined at the time that a statement of reasons is required to be furnished, it may appear to the decision-maker that the reasons which actuated the decision may have been inadequate, or in error, or that other reasons would provide a sounder basis. It may also appear that a different decision would have been preferable. (a) Where the reasons appear to be erroneous and render the decision unlawful,

it is desirable that, assuming power to do so, the decision be withdrawn and a new decision rendered.

(b) Where it appears that a different decision would be preferable, it is desirable that, assuming power to do so, the decision be withdrawn and a new decision rendered.

This procedure may result in settlement of the complaint at that stage. Equally, it may result in the department rewriting the reasons. This process must be distinguished from the internal review procedures operating in departments such as Social Security and Immigration and Ethnic Affairs. Recommendations from those sources may themselves lay the foundation of an AA T application.

Recourse to subsequent reasons is possible because at the end of the day it is the decision which is subject to review. However, a distinction must be drawn between responding to as 37 request and the Department's reconsideration of the reasons for the decision. The point was brought out in Re UK Family Reunion and Australian Postal Commission, 31 where the tribunal noted that in many instances nothing may turn on whether the reasons were those originally relied upon or subsequently developed, however in some cases, where for example,

the valid exercise of the power depends on the prior fulfilment of statutory requirements, ... [the question of] how far subsequently developed ... reasons can be used to support the decision under review may be a difficult ... [one]. 32

Rewriting or reconsideration is obviously a burden for the departments concerned. On the one hand it has been suggested that review bodies should not look over-critically at words used in decisions of officials, many of whom are not lawyers. 33 But experience suggests that even if such statements are not as vital in the AA T jurisdiction as in Federal Court proceedings they are the basis of an AAT enquiry. 34 Departmental legal officers must be expected to scrutinise

29 These amendments picked up the more serious weaknesses noted by Taylor, supra n 7 . .ll(l983) 46 ALR 351, see below pp 166-167. 31 ( 1979) 3 ALD 383. 32 /bid 400. 33 Commonwealth of Australia v Duncan ( 1982) 44 ALR 249. 34 Eg Ates v Minister for Immigration and Ethnic Affairs (Federal Court of Australia, 3 March

1983, unreported decision of Smithers 1). See ( 1983) 5 ALN No 51 and Toy Centre Agencies Pty Ltd v Spencer (1983) 46 ALR 351.


the reasons for the original decision in the light of relevant decisions made by the AAT (and the courts). Reasons which the AAT views with disfavour may be replaced by more acceptable reasons. The Explanatory Memorandum suggests in para 15 that where this occurs the new reasoo&-&Aeuld-be-provided as well as the actual reasons for the decisions. It notes that there may be instances where the reasons have changed to such an extent that it would be better to withdraw the decision, assuming power to do so, and render a new one. Here again the new decision should be communicated together with a statement of reasons for the new de.cision. Where no reasons have earlier been provided it is difficult to believe that the sanitised reasons will not, where appropriate, simply be assented to by the decision-maker and presented to the applicant. A sanitised response can obviously make it more difficult for the applicant to challenge the decision in question.

At first glance this seems to be contrary to common Jaw notions of "fair play" but it can be argued that it really is perhaps the sensible way to proceed. The AAT is required to reach the "right or preferable decision". This jurisdiction is not the place for lawyers to score legal points and obtain useless remedies. The AAT examines the case on the basis of the evidence before it at the time of the appeal. Although trial by ambush is discouraged, the decisionmaker is not constrained by the statement of reasons in putting its case to the AAT.

There has been a more important development which does not appear to have anything directly to do with the guidelines developed by the Administrative Review Council. It appears that by 1983 procedures for obtaining reasons envisaged by the AAT Act and so carefully explained in Dr Taylor's Explanatory Memorandum are not being followed by applicants. The s 28 statement is by -passed. Instead, applicants go straight to the AAT and work from s 37 material. This of course includes both a statement of reasons and relevant documentation. Trial by ambush continues to some extent but both sides are encouraged to exchange relevant material before the matter comes formally before the AA T.

The applicant may decide to withdraw his AAT application when he is provided with the s 37 material. The Explanatory Memorandum clearly contemplated that this decision would flow from a s 28 statement.

Explanations offered for this development include: (I) In the case of departments with internal review mechanisms, the reasons

provided by the review body and passed on to the complainant may be sufficient to enable a decision to be made whether to appeal to the AAT.

(2) When advised of the adverse decision, with or without reasons, some departments advise the complainant that there is a right of review to the AA T. No reference is made to s 28 so that the complainant naturally proceeds directly with an AAT application.

(3) In some areas of jurisdiction, the urgency of the case or the knowledge of the applicant that more material is available under s 37 than under s 28 results in s 28 being by -passed.

Whatever the cause it seems that departments today can more readily avoid the pitfall demonstrated by Re Palmer:

Where statements of reasons are furnished under both ss 28 and 3 7 of the AAT Act, and those statements differ in content from each other, an adverse inference


may be drawn by the Tribunal. for instance, that the decision -maker has failed to consider carefully the obligations imposed by the legislation. 35

In view of this development, the value of the s 28 statement falls away. It is not being used to enable persons to see what was taken into account and whether an error has been made, so as to enable the citizen to decide whether to make representations to the Minister, proceed in the appropriate court of law or to seek a review by the AAT application. 36 As foreshadowed in Re Palmer the documents available under a s 37 statement combined with the Tribunal's power under s 38 to order further particulars more adequately fulfils the "citizen's entitlement to be fully informed". 37 As a result arguments before the AAT are constructed around carefully worked material which the decisionmaker provides under s 37 and further particulars supplied under s 38. The Tribunal often also has the benefit of hearing the complainant and relevant witnesses.

Accordingly, today it is unusual to find s 28 statements referred to at all in the Tribunal's decision. The weight placed by the AAT on s 37 material was pointed out in Re Gungor and Minister for Immigration and Ethnic Affairs:

Having regard to the constitution of the Tribunal and its general purpose it is not unlikely that the views taken by the Tribunal and those taken by the Minister as a member of the Australian Executive in particular cases may diverge. It was no doubt the intention of Parliament that it was desirable were they to diverge, that the Tribunal should express its views and, as required by the AAT Act, state those views in writing together with the reasons on which they are based. The result of those procedures is that Parliament and the public generally are fully informed as to the reasons supporting the Minister's decision, which will always be set forth in the Ministerial statement pursuant to s 37 of the AAT Act, and the Tribunal's reasons which will always be set out as the basis for any recommendation it may make. 38

In summary then, the duty on the decison-maker under ss 28 and 37 of the AAT Act generally allows the department to re-examine the case. In practice the availability of reasons under s 28 is not utilised to enable the complainant to decide whether to exercise his option to challenge the decision. The fuller s 37 "reasons" perform this role so that many applications lodged with the AAT are withdrawn when the s 37 statement is received.

Finally it must not be forgotten that the AA T itself has to supply reasons. These may form the basis for an appeal to the Federal Court on a point of law. Perhaps more importantly, the reasons of the AAT operate in a very direct way on the policy or guidelines under which the departments will be exercising the discretionary power under review. 39

B "Reasons" in the Judicial Review Act Jurisdiction

It is obvious that the proper discharge of statutory obligations under ss 37

35 Explanatory Memorandum. supra n 26. para 28. citing Re Palmer and Minister {or the Capital Territory (1978) I ALD 183, 194.

36 RePa/medl978) I ALD 183,193. 37 Ibid. 38 ( 1980) 3 ALD 225, 231. l'l Eg Barbaro v Ministerfor Immigration and Ethnic Affairs ( 1982) 46 ALR 123. This issue was

dealt with in papers presented at the 1981 Seminar, '"The Choice between Judicial and Administrative Tribunals", see Mr Justice MD Kirby, '"Administrative Review: Beyond the Frontier marked 'Policy-Laywers Keep Out''" ( 1981) 12 Fed L Rev 121.


and 38 of the AAT Act is essential to enable the AAT to decide on the merits. The introduction of the same statutory duty under s 13 of the Judicial Review Act is equally important for it removes much of the difficulty experienced in common law challenges to decisions made in exercise of discretionary power. The starting point is the Federal Court's insistence in Hamblin v Duffy'll that it is prevented from review on the merits.

Judicial review by this court under the Judicial Review Act does not enable the court to substitute its own decision for that of the person or body whose action is challenged. The question for the court generally is whether the action is lawful in the sense that it is within the power conferred on the relevant Minister, official or statutory body; or that the prescribed procedures have been followed; or that the general rules of law, including adherence to the principles of natural justice, have been observed. The court is empowered to enjoin action or to quash a decision it finds unlawful and to direct action to be taken in accordance with law. It may also compel action by a person or body who has not acted, but who ought to have done so 41

In that judgment the Court went on to say:

Section 13 of the Act is important. It entitles persons, who may apply to the court under s 5 for review of a decision, to request and obtain within 28 days a statement in writing from the person who made the decision of the reasons for the decision, including findings on material questions of fact and the evidence or other material supporting those findings. But there are qualifications to the rights under s 13. The section does not apply to decisions in relation to which s 28 of the Administrative Appeals Tribunal Act 1975 applies. Nor does it apply to decisions falling within the classes of decisions enumerated in sch 2 to the Judicial Review Act. A request for reasons must be made within 28 days of the date on which the applicant was furnished with the terms of the decision in writing or otherwise within a "reasonable time" after the decision was made: s 13(5). The person who made the decision is not required to include in the statement any information in respect of which the Attorney-General has certified that its disclosure would be contrary to the public interest on any of the three grounds specified in s 14(1 ): s 14(2). Nor is he required to include in the statement information as to personal or business affairs of a person, other than a person making the request; information supplied in confidence; information which, if published, would reveal a trade secret; information furnished in compliance with a duty imposed by an enactment: and information, the furnishing of which would be in contravention of an enactment: s 13A42

One of the weaknesses which was identified by academics some years ago43

and has not so far been corrected, is that nothing in the Judicial Review Act deals with the situation where a decision-maker fails to respond to a request under s 13( 1 ), does not invoke s 13( 4A) and does not give notice under s 3. In other words it is not clear how the court can deal with the situation where the decision-maker simply refuses to give reasons. This problem was adverted to in Lloyd v Costigan. 44 Doubts were expressed as to whether the court had any power to grant a remedy in respect of such a refusal. Perhaps one answer would be to adopt the view taken by Lord Denning MR in his dissenting judgment in

..,(1981) 3 ALD 153. 4' Hamblin v Duffy (1981) 3 ALD 153, 154-155. 42 /bid 156. 43 Eg Flick, supra n 7. 44 ( 1983) 48 ALR 241.


Padfield v The Minister of Agriculture and Fisheries45 and assume that refusal to enunciate reasons is a clear indication that the decision -maker has abused power in terms of s 5 of the Act.

Despite the statement in Hamblin v Duffy46 the range of material available for examination by virtue of the s 13 statement of reasons has had considerable impact on the grounds of review under the Judicial Review Act. Two differing lines of reasoning are apparent in recent judgments of the Federal Court. They have to do with arguments that the statement of reasons discloses an error of law s 5( I )(f) or improper exercise of power under s 5( I )(e) by failing to take into account relevant considerations or by taking into account irrelevant considerations. The first approach is demonstrated by Sean Investments Pty Ltd v MacKellar:

The jurisdiction of this court, pursuant to the Administrative Decisions (Judicial Review) Act 1977, to review the Minister's decision is a limited one. The court is not entrusted with the duty or power to conduct a review on the merits of administrative decisions to which that section applies. It is restricted to a conside ration of whether it appears that the decision under review is affected by one or more of the "'grounds" specified in s 5(1) of that Act. Generally speaking, those grounds correspond to the established common law grounds for attacking the decision of an administrative decision maker. The court must, in my view. be vigilant to ensure that it does not, under the guise of reviewing administrative decisions on questions of law. trespass in fields of administrative decision making in relation to which it possesses neither mandate nor special qualification ....

In a case such as the present, where relevant considerations are not specified, it is largely for the decision -maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision -maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decideY

The same notion of judicial restraint was also expressed in Borkovic v Minister for Immigration and Ethnic Affairs. 48 Referring to the Judicial Review Act, Fox J said:

It can be said in a general way that s 5 is concerned with acts wrong in law or contrary to law and, one might add, misuse or abuse of power. What is set out in paras (a) to ( j) of s 5( I) accords very closely with the type of review with which one has become accustomed under prerogative writs or other avenues of review of administrative decisions, such as by way of declaration.

There is this constant reference to the exercise of power and the making of decisions without any invitation for the court to examine for itself the issues which arc involved. One can pause for the thought that an Act which is already very wide in its scope would be impossibly wide if it were to empower this Court to examine for itself the facts behind every decision which was capable of being reviewed.

A similar policy of judicial restraint was adopted by Lockhart J in Toy Centre

45 [1968) AC 997. 46 (1981) 3 ALD 153. 154-155. 47 (1981) 38 ALR 363,370-371 per Deane J. 48 (1981) 39 ALR 186, 189.


Agencies Pty Ltd v Spencer. 49 This concerned an application for an order of review of a decision to seize goods under the Customs Act 1901 (Cth). The applicant argued that none of the matters relied upon in the s 13 statement of reasons could individually be regarded as material and at the highest merely gave rise to a suspicion in the mind of the decision -maker. This was argued to be insufficient to support the exercise of power of seizure because the decisionmaker had to be positively satisfied that the falsity was deliberate. It was also submitted that the decision-maker failed to take two relevant considerations into account and in particular he did not place any weight on a letter which amounted to a character reference. The judge rejected the applicant's arguments. He commented:

Hearing applications under the Judicial Review Act brings the Court into touch through the evidence, with the administrative practices of many government departments. The departments themselves also become familiar with the requirements of the Judicial Review Act and, in certain cases, they have changed their procedures to accord with the purpose and spirit of the Judicial Review Act itself. The ultimate aim of the Judicial Review Act is to ensure that decisions of public servants and others which affect the rights, prospects and property of citizens, are made after giving careful consideration to the questions involved in the particular case, so that it is more likely that the decision will be right and justice done to the persons affected by it. This is really what the Judicial Review Act and the Administrative Appeals Tribunal Act 1975 are all about. But the court must not require perfection from decision makers or impose such onerous duties upon them as to cause them to be afraid to make decisions, lest they be challenged on trivial grounds, or to pre-occupy them with minutiae . . . . There is no essential inconsistency between the duty of decision makers to be fair to those who may be affected by their decisions and the advancement and efficiency of the Public Service. Extremes of view favouring one side or the other will not promote the plain objectives of administrative legislation including the Judicial Review Act. 50

In Sordini v Wilcox51 Keely J also adopted the restrained approach. The Court had to consider whether a single judge had committed an error of law in approaching his task under the Judicial Review Act. His Honour took the view that the question of the weight to be attached to any relevant consideration was a matter for the original decision -maker and was not a matter for consideration by the trial judge in dealing with an application under the Judicial Review Act. His Honour was influenced to a degree by the existence of a privative clause in the relevant legislation protecting the original decision in support of his conelusion against judicial intervention. Referring to the remarks of Deane J in Sean Investments and Fox J in Borkovic he concluded that it is not for the Court "to prescribe which factors should be given more weight than others" or "to determine ... the comparative importance to be accorded to matters" which the decision -maker regarded as relevant. 52 He agreed with the trial judge that the applicant's submissions "were directed more to persuading the court itself to exercise a discretion conferred by the Ordinance on the Committee. That is the very thing the Court should not do". 53

"(1983) 46 ALR 351. 50 Ibid 359. 51 Federal Court of Australia, 7 April 1983. unreported decision of the Full Court. 52 /bid I 0. 53 Ibid II.


The opposite approach is seen in successful challenges in the Federal Court to decisions under the Migration Act 1958 ( Cth). Here the judgments recognise that the correct approach is that laid down by Deane J in Sean Investments but have had no difficulty in manipulating it so as to allow the Court and not the Executive to set the perimeters of the broad discretion conferred on the Minister under s 18 of the Migration Act. This has been facilitated by relying upon a passage from the judgment of Stephen J in the High Court judgment Salemi v Minister for Immigration and Ethnic Affairs.

The Act requires that in each case the Minister should give consideration to whether or not in all the circumstances the prohibited immigrant should be deported. 54

Two recent cases demonstrate the way in which the Federal Court has used s 13 statements to conduct an intensive examination of the factors which the decision-maker took into account and has then proceeded to assess for itself the relative weighting of competing factors. The result has been to overturn the Minister's decision.

In Ates v The Minister/or Immigration and Ethnic Affairs, 55 the judge held that the view expressed by Stephen J in Salemi allowed him to engage in an exhaustive examination of the s 13 reasons. One of the factors put forward for consideration by the Minister's delegate-and rejected by him-was that the deportation of Ates would prejudice his unresolved civil action for accident compensation. Smithers J found that although the delegate had "in a sense" taken this matter into consideration he then went about the task of assessing its relevance incorrectly-he relied upon advice from the defendant insurance company instead of pursuing inquiries with the deportee's solicitors. Such judicial scrutiny comes close to investigating the merits. On a closer reading of the decision, it can be argued that the judge treated this fault on the part of the decision -maker as evidence of a total misunderstanding of the statutory power. The discretion under s 18, as he saw it, is whether there are circumstances which suggest that a prohibited immigrant should not be deported-not whether there are circumstances favourably affecting ineligibility to remain in Australia. Similar concern about departmental misunderstanding of its responsibilities in overstayer cases is found in Tagle v Minister for Immigration and Ethnic Affairs:

[I]nstead of considering whether to deport the applicant, he treated that question as being one to which there could be only one answer .... The delegate wrongly acted upon the view that he "could not" countenance her continued stay in Australia "as" (ie because) she did not have a current entry permit and in so doing misconceived his function. 56

Keely J in Tagle quoted with approval the statement in Sean Investments that the question of what considerations are to be taken into account is "largely for the decision -maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant ... "YIn his view, however, in

54 (1977) 14 ALR I, 29. 55 Federal Court of Australia, 3 March 1983, unreported decision of Smithers J. 56 (1983) 46 ALR 379, 386-387. 57 Sean Investments Pty Ltd v Mackellar (1981) 38 ALR 363, 374 per Deane J, and see the Full

Court judgment ( 1982) 42 ALR 676, esp Franki J.


an exercise of discretion under s 18 of the Migration Act there is an obligation on the decision-maker

to give some consideration to the particular circumstances of the proposed deportee. It is a matter for the delegate to determine whether any and what weight is to be attached to those circumstances. However, if the delegate fails to give any consideration at all to those circumstances, then in my opinion, he fails to carry out his task of considering whether to deport the applicant. 58

This view took the judge to an examination of the reasons supplied under s 13 of the Judicial Review Act. He concluded after an exhaustive examination of the material supplied pursuant to s 13 that no consideration at all was given to relevant considerations in respect of the proposed deportee. In summary, the finding that the decision-maker had misconceived his function was essentially based on the judge's assessment of the s 13 material in the light of the claims made on behalf of the applicant that there were certain relevant considerations which the decision-maker had failed to take into account.

In the recenl decision of Sordini v Wi/cox 59 the judgment of Mr Justice Woodward supported by Mr Justice Blackburn indicates that this approach is not restricted to deportation decisions. The case concerned an appeal for error of law against a decision by a single judge under the Judicial Review Act. It concerned a complaint made about a decision of the ACT Legal Aid Review Committee, a statutory body in which two of the three members were lawyers. The judge commented that he agreed with the restraint urged in Commonwealth of Australia v Duncan, 00 namely not to look overcritically at the words used in decisions by administrative tribunals. However, the situation was different where the tribunal is made up of lawyers. In any case it was "the substance of the reasons which is in issue not the words."

Mr Justice Woodward took the view that: [W]hen reasons have been given purporting to state the considerations which have influenced the administrative authority- in this case the Review Committee -then both the Judicial Review Act and House v The King, so far as it is relevant to administrative discretion, require a consideration of any factors which have been wrongly considered or omitted from consideration. It would be a strange result if inadequate reasons were to be reviewed on a less critical basis than carefully considered and fully stated reasons. 61

His Honour went on to analyse House v The King62 finding that it indicated three different circumstances in which an appellate court could interfere with the exercise of discretion. In his opinion these apply equally to the review of judicial and administrative discretions.

The first of these is where there has been an error of law in the sense of the misinterpretation of an enabling statute or the violation of some established legal principle. That is not the case here.

The second is where there is no apparent reason for the error into which the tribunal has fallen, but the result arrived at is so clearly wrong that it cannot be allowed to stand. An error of law somewhere in the process of marshalling and

58 ( 1983) 46 ALR 379, 398. 59 Federal Court of Australia, 7 April 1983, unreported decision of the Full Court. 00 (198:1) 44 ALR 249. 61 Supra n 59, 26-27. 62 ( 1936) 55 CLR 499.


considering the available material must be presumed. These are the cases in which it is said that the appellate court will not interfere unless "the case is perfectly clear" ....

This is, as I have said, the test which Northrop J. applied in the present case. He formulated the test as being

"whether the material before the administrative body was such that the body properly directing itself to all relevant matters of law could not have reached the conclusion that it did. " 63

However, Woodward 1 went on to suggest that there is a third situation-where s 13 material is before the court. In such a case he considered that there will be sufficient material in the reasons for decision to "enable and indeed require" (emphasis added) a more detailed analysis of the way in which the decision-maker carries out his functions.

It is clear that the taking into account by an administrative tribunal of irrelevant factors, or the failure to give any, or any sufficient, weight to significant factors in the exercise of a discretion, will open the door to a judicial review of that discretion. This is the third circumstance in which an appellate court may interfere. See, for example, Edmund Davies L.J. in Instrumatic Ltd v Supabrase Ltd (1969) I WLR519 ....

What happens next must depend upon the seriousness of the tribunal's default in relationship to the totality of the factors it has had to consider.

If the factor in question is only one of a number relied on by the tribunal, then weight must continue to be given to the decision of the tribunal, which will only be overturned if the court "comes clearly to the conclusion for that reason that the discretion has been exercised wrongfully" (per Kitto J. in Lovell v Lovell (1950) 81 CLR 513 at 533).

But, I believe, if the material before the court suggests that the default of the tribunal has been serious and significant-in taking into account matters which ought not to have been given any weight or giving little or no weight to important factors-then there can be little guidance to be had from the tribunal's decision and the court should more readily substitute its own discretion. 64

His Honour went on to consider the reasons put forward under s 13 and decided that there had been a fault of the third type which he had described.

It was of course, the notion that the court can consider for itself whether "sufficient" weight has been given to certain factors which was rejected by Keely 1 in the same case. The third tes't suggested by Woodward 1 allows the Federal Court to come very close to standing in the shoes of the decisionmaker. The result is that the Federal Court insists that it cannot review merits and should not look over-critically at words used in decisions of members of administrative tribunals many of whom are not lawyers. Nonetheless when it wishes, it is able to treat the s 13 statement as a springboard from which to entertain argument on whether the statement discloses that the decision-maker did not "properly" consider or "weight" relevant matters.

As the cases discussed above indicate, it is easy to establish an improper exercise of power under s 5( I )(e) by applying the third approach suggested by Woodward 1. As Sheppard 1 has stated in Putale Pty Ltd v Collector of Customs for NSW:

63 Supra n 59, 27-28. 61 /bid 29-30.


... I would deny the proposition. that judicial review is available in this Court only if an error of law is disclosed. The Judicial Review Act ins. 5 clearly empowers the Court to act in very many cases where no question of law is involved. 65

This approach allows the Court to avoid the somewhat artificial device of grounding review on error of law under s 5( 1 )(f) by narrowing the range of factors which fall exclusively within the jurisdiction of the delegate. 66 Nonetheless, cases like Ates, seem to cut across the approach in Sean Investments. The difference between errors of fact and errors of law seems to become irrelevant. Over-stayer cases decided under s 18 of the Migration Act, suggest that there is almost no factor which is not a "proper consideration". This is a serious consequence. The statutory obligations imposed upon decision-makers under the AAT Act and the Judicial Review Act are important ones. Adequate reasons are fundamental to the whole scheme of review. It has always been the hope that the obligations would improve the quality of decision-making. This result is unlikely to be achieved if the judges move too far from the principle of judicial restraint when confronted with s 13 statements.

The court must not require perfection from decision -makers or impose such onerous duties upon them as to cause them to be afraid to make decisions, lest they be challenged on trivial grounds, or to preoccupy them with minutiae. 67

C "Reasons" under the Freedom of Information Act 1982 The fourth element in the Administrative Law Reform "package" contem

plated by the Kerr Report 1971 68 finds expression in the Freedom of Information Act 198 2 ( Cth). This legislation represents an attempt to respond to the pressure for open government. It can be said that the onus of proof is shifting from those who want information disclosed to those who want it withheld. (fi The assumption is that official information should be made available unless there are good reasons to withhold it in the interest of the community at large.

Recent High Court decisions reflect this shift in favour of disclosure of official information, by insisting upon the right of the courts to determine finally whether official information should be disclosed, even where this has required a ruling on matters with strong political and policy implications. 70 It therefore might have been expected that the FOI Act which gives a legal right of access to official information, would have given the courts final power to decide whether that legal right should be upheld in particular cases.

However such an expectation overlooks the argument that the cases where public interest immunity is claimed have so far involved decisions on disputes about disclosure of information sought in litigation. The issues were therefore known to the court, the proceedings were under the court's control and the in-

61 (1982) 4 ALD 156, 164-165. "'Edwards v Bairstow [ 1956]AC 14. 67 Toy Centre Agencies Pty Ltd v Spencer ( 1983) 46 ALR 351. 359 per Lockhart J. 68 Commonwealth Administrative Review Committee, Pari Paper No 144/1971. 69 FO I Act s 6 I. >J Sankey v Whit/am ( 1978) 21 ALR 505; Commonwealth of Australia v John Fairfax& Sons Ltd

(1980) 32 ALR 485 and see Freedom of Information-Senate Standing Committee on Constitutional and Legal Affairs on the Freedom of Information Bill 1978 and Aspects of the Archives Bill 1978. Pari Paper No 272/1979; Directions/or Change--Review of New South Wales Government Administration, Interim Report ( 1977) and see Model Bill in Further Report Unfinished Agenda ( 1982), 177.


formation sought related to a specific decision affecting an individual. Here, the court could assess the competing claims of public interest for and against disclosure and control the use to which the information would be put. 71 This argument would have it that requests to exercise a legal right of access to "documents" under the FOI Act are of their nature not intended to be so circumscribed. The legislation therefore limits the statutory right to access inter alia by providing wide ranging exemptions from the principle that official information should be available to the public unless there are good reasons to the contrary. These exemptions can be certified as unchallengeable before the courts. The courts are thus not seen as having a central role in making decisions about the release of information. The final decision is for the Executive.

These remarks about the limited role of the courts under the FOI Act have an impact on the previous discussion in relation to the giving of reasons under common law and under the jurisdiction conferred by the AA T Act and the Judicial Review Act. Viewed from one perspective the FOI Act is of course directly concerned with the giving of reasons. It purports to be the ultimate response to the demand for explanations about official decisions or action/inaction. But as indicated above, the potential breadth and reach of the legislation takes it beyond complaints which are concerned with the notion that the individual has the right to know the reasons for a decision affecting him. Decisions made under the AAT Act and the Judicial Review Act can result in changes to procedures and policy but the primary object of the obligation to give reasons under those Acts is to provide the necessary evidence to enable the AAT or the Federal Court to check administrative abuse of power in a specific situation.

The legislative developments overlap; all reflect the well founded belief that hidden decision -making leads to abuse of power, but the primary purposes are clearly different. This fundamental difference is exposed, for example, by the "standing" requirements. The AAT and Judicial Review legislation cling to the common law notion which limits standing to persons whose interests are "affected" or "adversely affected" by the decision. 72 By contrasts II of the FOI Act gives a legally enforceable right of access to anyone except aliens resident outside Australia. The difference if further emphasised by s 14 of the FOI Act which preserves rights of access to documents which Ministers or Agencies are required by law to disclose. The individual complainant's statutory right to reasons under the AAT and judicial Review legislation is apparently preserved unless in the case of the AA T a s 26 notice has been issued under the FOI Act. 73

The whole thrust of the Act is against its use as a conduit of material to enable litigation. For example, s 19 gives a 60 day time limit for a response to a request as opposed to the 28 days under the AA T Act and the Judicial Review Act. The width of "exemptions" available to shelter documents under the FOI Act is much wider than the "public interest" provisions in the AA T and

11 These views are put forcefully in Towards Open Government---committee on Official Information, General Report ( 1980) NZGPS.

12 S 27 AAT Act; s 3(4) Judicial Review Act. Re McHaltan v Collector of Customs (NSWJ (1977) 18 ALR 154, 157. .

13 FOI Acts 62 see beloW'P 174.


Judicial Review legislation which apply to "reasons" and documentation strictly relating to a particular decision. The Ombudsman is restricted under the FOI Act from including "exempt" documents in a report responding to a FOI Act complaint under s 57(5). Nonetheless, United States experience suggests that it will be used for "fishing" enquiries by potential litigants.

However, the laborious procedure for testing refusals (FOI Acts 24) which requires the applicant to exhaust internal review mechanisms (FOI Acts 54) thereby obtaining a fresh statement of reasons (FOI Acts 54(4)) which then becomes the reviewable decision (FOI Act s 55(2)) is not going to accelerate any collection of material for the purposes of litigation. If the request is still refused the applicant then has to choose whether to go the route of review by the Ombudsman in the case of non-ministerial decisions (FOI Act s 57(4); Ombudsman Act s 12) or to apply to the AAT where this avenue is available.

The position is further complicated in the case of documents in respect of which a conclusive certificate is issued. The issue of ''exemptions" has been the subject of an earlier paper delivered at this Seminar. 74 It will be sufficient here to note that where a conclusive certificate has been issued it still seems possible for the complainant to ask the AAT to determine whether the document is exempt (FO I Act s 64). After that issue is decided the Tribunal's powers under its own legislation appear to fall away (FOI Acts 58). Its powers are replaced by those of the Documents Review Tribunal (FO I Acts 71) which has powers only of recommendation (FOI Acts 67). An appeal on questions of law to the Federal Court (AA T Act s 44(1)) remains in respect of issues coming before the AA T but this in turn appears to be caught by the conclusive certificate (FOI Acts 64(6)) in the case of exempt documents.

This confusion of review mechanisms confronting the applicant where a request is declined is perhaps the clearest evidence of the ideology underlying FOI legislation. A general right of legal access is recognised and there are no problems about standing. Legal access to documents, yes. But it is legal access in which recognition of the public interest in restricting information takes precedence over the public interest in disclosure. Accordingly the scales are weighted in advance against the individual's interest in disclosure. There is little room for the court to play its common law role of holding the balance which has generally been conceded to them in the case of litigation. This result is especially troublesome in provisions such as s 36 dealing with internal working documents because in the first instance it is for the decision-maker to decide whether the matter is one affecting "public interest" and the term is not defined. 75

This produces the result that under common law and the AAT and Judicial Review Acts the Federal Court (and to a limited extent the AA T) has power to decide whether access to a document should be withheld in the public interest. By contrast the operation of provisions such as Part IV of the FOI Act and s 58(2), prevent the AAT and possibly the Federal Court from discharging such a function. 76 The extreme is reached in s 14 which provides that Ministers

14 P. Bayne, "Exemptions Under the Freedom of Information Act 1982" ( 1983) 14 F L Rev 67.

15 See the concept of "public interest" put forward in Guidelines to Freedom of Information ( 1982), FOI Memorandum No 27 paras 13 et seq.

16 But see remarks of Ellicott J in Haj-lsmai/ v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 516,527 and Hammond v Commonwealth (1982) 56 ALJR 767.


and Agencies may disclose documents (including exempt documents) where it is lawful to do so. By contrast it appears that the AAT can never disclose "exempt documents" (FOI Act ss 63, 64).

The rationalisation for this situation is presumably that pu~ at the commencement of this section of the paper-the breadth and thrust of the legislation justify the reversal of the common law rule that the courts have the final say in claims for immunity on the ground of public interest. The final decision under the FOI Act must be that of the Executive. It therefore seems inevitable that in looking at requests under the FOI Act the decision-maker, particularly the initial decision-maker will look at the status and content of the document and notions of the need for candour in the public service rather than at the merits of the applicant's claim. n The reasons for allowing such a weighting by the Executive may be justifiable in many cases--i.Ioubt remains whether it is correct to assume that judicial tribunals are unsuitable to review such decisions.

Despite the ideology underlying the legislation in its current form the FOI Act recognises the need to provide reasons when a request for access to "documents" is refused (s 26). It is notable that the provision does not place any onus on the complainant to request reasons and it provides the basis for a challenge before the AAT or the courts on a denial of access. Section 26 requires a notice in writing to be given to the applicant whose request has been refused with "findings on any material questions of fact, referring to the material (as opposed to the documents) on which those findings were based, and stating the reasons for the decision." One potential problem in the case of a request under the FOI Act is contained in s 62 of the legislation, which provides that where a FOI Act s 26 notice has been given no response to a request for reasons for refusing documents under s 28 of the AAT Act need be met. This is presumably not intended to have the effect that despite s 14 of the FOI Act, a refusal under s 26 on the ground that a document was exempt as an internal working document accompanied by a FOI Acts 36 certificate results in AAT powers under s 36 and s 37 of the AAT Act being ousted. The Attorney-General's Department's memorandum on this issue also suggests that the same position obtains in the case of s 13 requests for information under the Judicial Review Act. 78 It is assumed that the real intention of the legislation is to spare officials having to provide double reasons for refusing access sought under the FOI Act.

In many cases the AAT and the Federal Court rely upon statements of reasons provided under statutory obligations to overturn administrative decisions. Can applicants expect similar success by relying on s 26 FOI Act statements of reasons? Review of a refusal for access under the FOI Act is limited to review of the decision refusing access. The Attorney-General's Department's FOI Act Memorandum 321ists the grounds on which a refusal to give access should be made: • on the ground that the document is not a document of an agency or an

official document of a Minister, as the case may be; • on the ground that the document is an exempt document;

nThis must result from the direction in FOI Memorandum No 27, supra n 75. 78 Guidelines to Freedom of Information ( 1982), FOI Memorandum No 32 para I 0.


• on the ground that the document is one to which Part III of the Act does not apply-s 12;

• on the ground that the document has not been sufficiently identified in the request;

• on the ground of the diversion of resources involved in dealing with the request;

• on the ground that access will be given in a form other than that requested by the applicant. 79

Where the ground of refusal is a claim that the document is exempt, a quagmire opens up for the complainant. His position is a weak one. If he has an alternative route of redress through the AAT or Federal Court he will be well advised to go that way. It would in any event probably be faster. Where the refusal is not based on an exemption claim the statement of reasons required under s 26 married with the powers under ss 37 and 38 of the AAT Act would seem to place a complainant in a position analagous to an applicant under that legislation. The AAT has all the powers which it can ordinarily exercise in respect of a decision within its jurisdiction. A similar position obtains in respect of review by the Federal Court. In practice, however, it would seem that the exemptions provisions, particularly when a certificate is provided under s 36 (internal working documents) will effectively deprive the AA T and the Federal Court of jurisdiction to consider challenges to s 26 decisions. Moreover it must be emphasised that the review of a refusal to give access is just that, it has nothing directly to do with an application for a review of any decision contained in the material in respect of which access is requested and refused.

3 CONCLUSION- Open Government Versus "Baiting Bureaucracy"

The shift away from nineteenth century reluctance to undertake judicial review of discretionary power when combined with a statutory duty to give reasons in the form required by s 13 of the Judicial Review Act and ss 28 and 3 7 of the AA T Act has allowed the courts to broaden the scope of review. It is only necessary to contrast the statements in Allcroft v Bishop of London with those in Ates, Tagle, and Sordini to appreciate how far the Federal Court has moved towards investigating the merits under the guise of exploring "an improper exercise of power" exposed by the statement of reasons of the content required under this legislation. The move has been facilitated by the extent of information which the decision-maker is obliged to disclose.

The wider scope for review thus made possible by Australian review legislation has been paralleled to some extent in England and New Zealandlll by decisions based on common rules regarding judicial review which achieve much the same result. In these two jurisdictions this has been done in a fashion which would please Professor Wade81_by redefining and thereby expanding the earlier notions of what can be included in the record and the extent to

79 Ibid para 2 and see paras 3 and 4. "'Norton Tool Co Ltd v Tewson [ 1973]1 All ER 183; Barton v Licensing Control Commission

[ 1982]1 NZLR 31; R v Knightsbridge Crown Court; Ex parte International Sporting Club (London) Ltd [ 1981] 3 WLR 640.

81 Professor H W R Wade, "Law, Opinion and Administration" ( 1962) 78 LQR 188 and see Wade Constitutional Fundamentals ( 1980) (Hamlyn Lectures).

176 Federal Law Review (VOLUME 14

which the court can expand or contract jurisdictional error-but the common law does not insist on reasons as of right, much less the breadth of material which has to be disclosed under Australian review legislations.

The statutory obligation to give reasons under s 28 of the AAT Act, s 13 of the Judicial Review Act and s 26 of the FOI Act is expressed in the same statutory language-information as opposed to documents. Under ss 37 and 38 of the AAT Act, and the general practice and procedures of the Federal Court in the case of an application of the Judicial Review Act, the necessary documents are likely to be made available. However, the s 26 FOI Act statement is concerned with reasons for refusing documents; related provisions of the Act are aimed at restricting the material disclosed via s 26.

The AAT Act obligation under s 28, intended to provide the complainant with the necessary maerial to decide whether to pursue his grievance is now not often used. Instead, by lodging an application for review under the AAT Act complainants obtain the wider range of material, including documents, available under ss 37 and 38. Because the AAT is charged with reaching a decision on the merits, reasons and documentation provided under these statutory requirements do not assume the same degree of importance as in the case of reasons supplied pursuant to the Judicial Review Act. However, by inspecting and assessing the material provided under ss 37 and 38 the AAT has a considerable influence on "policy" at the cabinet, ministerial and departmental levels.

In practice s 13 statements under the Judicial Review Act seem to become "the record" supplemented by such additional evidence as can be properly ordered and placed before the Federal Court. Accordingly, while refusing to examine the merits the court is able to subject s 13 statements to an exhaustive judicial scrutiny for evidence of improper exercise of power (s 5(I)(e)), or for any of the other grounds in s 5. In a recent article Ms V Bath82 persuasively argues that the distinction between errors of law within jurisdiction (nonreviewable) and errors of law going to jurisdiction (reviewable) remains a feature of the Australian system of common law judicial review. The significance of this distinction has been substantially reduced in the case of actions under the Judicial Review Act (s 5(I)(f)). The remaining argument is whether the error committed by the decision-maker is one of fact which the court should not review because by doing so it would canvass the merits of the decision.

One trend identified in this paper does seem to take the court into an examination of the merits. This is the very course which has been cautioned against. 83

Reasons given for refusing access to documents under the FOI Act throw up different issues involving the operation of review mechanism which is yet to be adequately tested. An obvious problem is that although the language in which the FOI Act s 26 statutory obligation is cast is the same as that used in the earlier AAT and Judicial Review Acts, the reasons under the FOI Act are con-

82 V Bath, 'The Judicial Libertine-Jurisdictional and Non-Jurisdictional Error of Law in Australia" ( 1982) 13 F L Rev 13.

83 Sean Investments v Mackellar ( 1981) 38 ALR 363, 3 70-371 and cases discussed above pp 166-167. DC Pearce, "Judicial Review of Tribunal Decisions-The Need for Restraint" (1981) 12 Fed L Rev 167, 172-173.


cerned with justifying non -disclosure of documents as opposed to justifying a decision to refuse a pension or to deport an overstayer. The difference is fundamental flowing from the different purposes of the legislation. All three statutory provisions reflect the reluctance to disclose documents as opposed to disclosing a reference to the evidence on which the decision is based. Additional statutory requirements of the AA T Act and the enthusiasm of the Federal Court have flushed out the documents where this is necessary to deal with abuse of discretionary power affecting individuals. It remains to be seen how far these review bodies and the Ombudsman are able and willing to assist challenges under the FO I Act.

Given the potential width of review provided by the AAT and Judicial Review Acts it may be that complainants who are entitled to the material required under that legislation will not need to make use of the legal right of access to documents under the FOI Act. For those complainants who do not have standing to obtain reasons under the AA T or Judicial Review Acts, recourse to the Ombudsman would seem one way to have a decision reviewed, although there too the question of standing can pose problems. If none of these avenues of review is available-perhaps the Ombudsman's jurisdiction is excluded because a ministerial decision is involved-then the FOI Act does provide a potential source of information whether by recourse to the manuals or guidelines which Departments and Agencies are now obliged to make available (ss 8 and 9) or through exercising the right to access through s II. Problems confronting an applicant who wishes to overturn a claim for nondisclosure have been touched on. The power of the Executive to give a conclusive certificate may prove to have unfair repercussions in respect of information sought through the FOI Act which could have been obtained through the AAT or Judicial Review legislation. One answer would be to restore the pre-eminent position of the judiciary to decide public interest claims. This issue is currently under examination. It would, however, be unfortunate if the FOI Act were allowed to become a primary source of evidence for litigation. Leaving aside the vexed question of standing, the evidentiary basis for review provided by the AAT and Judicial Review legislation seems more than adequate. The FOI Act should be used as a tool to provide fortransparency in decision-making--open government-as opposed to a method of baiting bureaucracy.