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lution without expressing lack of the respect due coordinate branches of government;
or an unusual need for unquestioning adherence to a political decision already made;
or the potentiality of embarrassment from multifarious pronouncements by various
departments on one question.35

Finally, there are concerns sourced from understandings of the limits of judi-
cial power. As mentioned earlier, exercise of the Commonwealth judicial power
requires, at least, a constitutional matter for the court to address. Beyond this
requirement, the separation of powers doctrine dictates that it is not for the courts
to exercise executive power, that being solely the province of the executive gov-
ernment. To do so is for the court to enter a region where there are no ‘judicially
discoverable and manageable standards’ to guide it, and where it travels beyond
the legitimate judicial review role of supervising administrative process to the
wholly illegitimate point of participating in that process.
It is the combination of these concerns which appears to underpin the remain-
ing subject matter immunities. However, it should be recognised that these con-
cerns are buttressed by the judicial tendency to call in aid old authorities, fre-
quently predating CCSU, which are arguably of diminishing relevance in the
altered constitutional landscape.
It may be that these concerns are overstated. It is undoubtedly the case that
the separation of powers doctrine requires that courts refrain from exercising
executive power and confine themselves to supervising its exercise in accord
with the rule of law. But it is doubtful that such restraint must result in the
total non justiciability of decisions made in these sensitive subject areas. As was
156 AUSTRALIAN ADMINISTRATIVE LAW


argued earlier in relation to polycentric decisions, the way forward may lie in
recognising that judicial review contains its own internal self constraints built
into the nature of the various grounds of review. With minor exceptions, such as
some aspects of the unreasonableness ground, judicial review grounds are clearly
concerned with the process of administrative decision-making and not with the
substantive outcomes. This is evident both in the nature of those grounds, for
example, was the process fair; were relevant matters considered, and so on, and
also in the nature of the remedies granted, which seldom if ever determine the
substantive outcome of the administrative process. Thus it is possible for courts
to undertake judicial review of decisions made in these sensitive areas without
thereby transgressing into constitutionally inappropriate areas.


Criticisms of the justiciability doctrine

A number of criticisms may be made of the doctrine that there are remaining
classes of decisions which are non-justiciable. First, it is evident that the doctrine
constitutes a limit, if not an affront, to the rule of law. Simply put, it is a doc-
trine that there are at least some areas of executive decision-making which are
immune from judicial supervision in even the most attenuated of forms. This is a
conclusion which ought to be assessed in terms of modern constitutional appro-
priateness, rather than simply accepted on the basis of authority which reflects
a very different understanding of the relationships between executive, judiciary
and citizens. Sadly, far too many of the cases simply reflect the dead weight of
past authority and lack any examination of underlying principle.
Second, judicial acceptance that there are immune subject matters opens the
possibility of unchecked abuses of power. In this, a new formalism, wherein
immunity is based upon subject matters, fares little better than the formalism
based upon the sources of power which was rejected so emphatically in CCSU.
It is not to the point to respond that abuse will be rare; experience suggests that
the possibility of judicial review is at least one way of ensuring that this is so.
Equally, it is not to the point to suggest that political accountability provides a
satisfactory alternative to judicial review in such cases. Rather, it may well be that
it is precisely in the case of the unpopular plaintiff for whom the political process
is least likely to prove a remedy that the risk of misuse of power is greatest. The
cases of elected governments losing office due to disrespect of the rights of a few
unpopular applicants for the prerogative of mercy are few indeed.
Third, it is questionable whether the separation of powers requires that some
classes of decision, such as those involved in defence or national security, be
immune from review. This is because, as noted in the earlier discussion of poly-
centricity, judicial review does not call upon the courts to exercise these powers
for themselves, to declare war or send the armed forces to particular destina-
tions. The separation of powers itself ensures, by means of the legality/merits
distinction, that the courts can play no such role. Moreover, the very nature of
157
THE CONCEPT OF ‘JUSTICIABILITY’


the grounds of review which constitute judicial review ensure that judicial inter-
vention, even in the absence of justiciability constraints, would be rare indeed.
This last observation leads to a final and central critique. It is arguable that the
justiciability doctrine is simply redundant. The judicial review process already
contains within itself sufficient restraints, such as the requirement for locus
standi, to ensure that inappropriate judicial intervention in the administrative
process is restrained. Most crucially, the various grounds of review are them-
selves shaped and constrained by the distinction between legality and merits.
Thus, it can be argued that there is simply no need for an additional freestand-
ing doctrine of justiciability.36 On this approach, non-justiciability might be seen
as a convenient judicial short hand, but at the cost of a lack of transparency in
explaining a decision not to grant review.
Whatever the merits of this argument, it is evident that non-justiciability is
very much a part of current Australian administrative law.
10
Standing
Roger Douglas




Standing has been described as a ‘metaphor to describe the interest required,
apart from a cause of action as understood at common law, to obtain various
common law, equitable and constitutional remedies’.1 A finding that a person
lacks the requisite interest means that they are not entitled to an order in their
favour even if they have otherwise shown that they would otherwise be entitled
to orders in their favour.
The law which governs standing in public law cases is ‘far from coherent’.2 ‘The
cases are infinitely various and so much depends in a given case on the nature
of the relief which is sought, for what is sufficient in one case may be less than
sufficient in another’.3 The law is complex, and reflects the semi-independent
development of the different strands of law which make up Australian public
law. The ‘rules’ governing standing vary, depending on whether the person seek-
ing standing is an Attorney-General (Part 1); a person seeking an injunction, a
declaration and, it seems, statutory orders of review (Part 2); an applicant for
any of the public law writs of certiorari, prohibition, quo warranto and habeas
corpus (Part 3); or an applicant for relief pursuant to a statutory scheme for
judicial review or review on the merits (Part 4).


The standing of the Attorneys-General

Attorneys-General (whether state or federal) have a statutory right to intervene
in matters arising under the Constitution or involving its interpretation.4 Under
the general law, Attorneys-General normally have standing, ex officio, to seek
review of administrative decisions made by bodies within their jurisdiction.5 They
usually do so because they are seeking to uphold the law of their jurisdiction.6

158
159
STANDING


Attorneys-General may also allow someone else to sue in their name.7 In these
cases, the case is still brought in their name, but is described as being ‘ex relatione
A’, where A (who is called the relator) is the person who is suing. In such cases,
the Attorney-General has ultimate control of the action.8 The Attorney-General
can terminate the case at any time and may settle on any terms. However, subject
to such decisions, the person on whose behalf the case is brought is the de facto
litigant, and the Attorney-General’s agreement to act will normally have been
conditioned upon the relator’s having undertaken to pay costs in the event of the
application failing. In deciding whether to bring an action at another’s request,
the Attorney-General’s discretion appears to be absolute. Neither the decision to
grant a fiat, nor a decision to refuse, is justiciable.9
When Attorneys-General participate in litigation they do so in their own right
and not on behalf of the governments of which they are members. This is the case
whether they act on their own initiative, or whether they are acting on the relation
of another party. In McBain, Gaudron, Gummow and Hayne JJ considered that
this precluded the Attorney-General from participating in litigation both as an
intervener and as lender of his fiat. Kirby J, however, was prepared to accept that
the Attorney-General could act in two different capacities.10
If Attorneys-General were inspired solely by a desire that the law be upheld,
the Attorney-General’s powers would represent an important mechanism for
the enforcement of public rights. But Australian Attorneys-General are typically
active members of the government. Their decisions tend to be influenced by
politics as well as law. They rarely initiate public law litigation, and while they
occasionally lend their fiat to collective interest litigation, this may be only after
a lengthy delay, and in some cases, agreements may be revoked under political
pressure.11 The High Court has treated this as grounds for favouring a liberalisa-
tion of the standing rules.12


Injunctions, declarations and (probably) mandamus
and orders under the Judicial Review Acts

There are restrictions on who is entitled to seek declaratory or injunctive relief
in cases where administrators have allegedly erred. A convenient starting point
is Boyce v Paddington Borough Council,13 where Buckley J held that there were
only two circumstances in which a private individual could sue in relation to the
performance of public duties:

first, where the interference with the public right is such as that some private right
of his is at the same time interfered with . . . and, secondly, where no private right is
interfered with, but the plaintiff, in respect of his public right, suffers special damage
peculiar to himself from the interference with the public right.

However, Australian standing law is complicated by the coexistence of cases in
the Boyce tradition and cases which come close to suggesting that there are no
longer any such restrictions.
160 AUSTRALIAN ADMINISTRATIVE LAW


High Court authority
In Australian Conservation Foundation v Commonwealth,14 the High Court con-
sidered whether it should continue to follow Boyce, and if so, what the Boyce
test implied. The Australian Conservation Council (ACF) sought to challenge
the validity of decisions under foreign currency regulations giving approval to
a developer to import the capital needed to construct a resort. It contended
that a condition precedent to the granting of permission was that a proper envi-
ronmental impact study be completed, and that this had not been done. It no
doubt hoped that the decisions would be declared invalid, in which case the
development would at least be delayed, and possibly permanently derailed. The
defendants raised the standing issue as a preliminary point before Aickin J who
found that the ACF lacked standing.
On appeal, the Full High Court dismissed the appeal (Murphy J dissenting).
The majority (Gibbs J, Mason and Stephen JJ) agreed with Aickin J that there
was no reason why the question of standing should not be dealt with as a pre-
liminary issue, although it also recognised that a court might choose to exercise
its discretion by dealing with the matter on the merits without first resolving
the standing issue.15 It pointed out that, while courts possessed a discretion in
relation to when they might determine the standing issue, they did not possess
any discretion in relation to whether to find that plaintiffs possessed the requi-
site standing. It agreed that it was not appropriate to alter the law and adopt
something akin to an open standing rule.
Broadly, it followed Boyce, but it rejected the requirement that the plaintiff
suffer damage ‘peculiar to himself ’, insofar as this implied that the damage must
be suffered by the plaintiff and no-one else. Instead Gibbs J considered that
the requirement should be that the plaintiff should have ‘a special interest in
the subject matter of the action’, this being the way in which Boyce had been
understood in both English and Australian decisions.16
This left open the question of how ‘interests’ were to be conceptualised. In a
much quoted passage, Gibbs J stated that:

. . . an interest for present purposes, does not mean a mere intellectual or emotional
concern. A person is not interested within the meaning of the rule, unless he is likely
to gain some advantage, other than the satisfaction of righting a wrong, upholding a
principle or winning a contest, if his action succeeds or to suffer some disadvantage,
other than a sense of grievance, or a debt for costs, if the action fails. A belief, however
strongly felt, that the law generally, or a particular law, should be observed, or that
conduct of a particular kind should be prevented, does not suffice to give its possessor
locus standi. If that were not so, the rule requiring special interest would be meaningless.
Any plaintiff who felt strongly enough to bring an action could maintain it.17

Stephen J used slightly different language, but his reasoning was similar.18
Mason J acknowledged the difficulty of specifying which interests would suffice
to ground standing. He considered that ‘social or political interests’ could ground
standing,19 but he agreed that ‘a mere belief or concern, however genuine, does
161
STANDING


not in itself constitute a sufficient locus standi in a case of the kind now under
consideration . . .’20
Implicit in the Gibbs’ language was the assumption that the ACF’s interest was
a ‘mere intellectual or emotional’ one. The fact that it was an incorporated asso-
ciation with particular objectives was irrelevant. If a private individual lacked
standing, ‘a body corporate formed to advance the same beliefs is in no stronger
position’.21 Stephen J broadly agreed.22 Gibbs J considered that even if its mem-
bers had a special interest, that might not be enough to ensure that the ACF
had standing.23 The making of submissions in relation to the decision could not
confer standing unless the relevant law revealed an intention that the making of
submissions should give rise to further rights. The relevant legislation and pro-
cedures conferred no such right.24 Gibbs J concluded that the ACF did not have a
special interest in relation to the proposed development, and that it certainly did
not have a special interest to challenge the foreign currency decision. Stephen
and Mason JJ agreed.
The decision meant that a person or group could have standing if it had a special
interest in the subject matter of the litigation. The interest did not have to be a legal
interest, but not all interests would suffice to ground standing. The sufficiency of
an interest was to be determined objectively. Whether an interest would ground
standing would depend on a number of variables: on the distinctiveness of the
plaintiff ’s interest; on the directness of the relationship between the relief sought
and the interest, and, implicitly, on whether the interest belonged to a class which
qualified for legal protection. ACF decided that the ACF’s interest was not great
enough, partly because the relief being sought did not affect members of the ACF
in a manner sufficiently different to the way in which it affected other members
of the public, and partly because the members’ interest was, in any case, a ‘mere
intellectual or emotional’ one.
In Onus v Alcoa,25 the Court applied and developed its reasoning in ACF. The
plaintiffs, members of the Gournditch Jmarra people, sought injunctive relief
to restrain Alcoa from carrying out works in an area rich in Aboriginal relics.
They argued that the proposed works were prohibited by the Archeological and
Aboriginal Relics Preservation Act 1972 (Vic) (the Relics Act). They contended that
they had standing to sue. First, they contended that they had rights under the
Relics Act. Secondly, they contended that even if they did not, they had a special
interest in the proper enforcement of the Act. The first argument failed: The
legislation was such that it could not be construed as intended to confer rights
on Aborigines in particular. The second argument succeeded.26 The plaintiffs
represented a small group. They used the land on which the relics were to be
found, and had used the relics in the process of passing on group knowledge. The
interests they were seeking to protect were of particular significance to members
of that group.27 The case could be distinguished

both in terms of weight and, in particular, in terms of proximity, from that concern
which a body of conservationists, however sincere, feels for the environment and its
protection.28
162 AUSTRALIAN ADMINISTRATIVE LAW


The directness with which the plaintiffs’ interests were affected was such that
the case could be distinguished from ACF. But why did they carry greater weight
than environmentalists’ interests, and why were they not merely intellectual or
emotional?
Gibbs CJ and Stephen J pointed out that the mere fact that an interest was
emotional or intellectual did not mean that it was insufficient, provided that
it would otherwise be sufficient. Here the plaintiffs’ claim was they were ‘cus-
todians of [the relics] according to the laws and customs of their people and
that they actually use them’.29 But Gibbs CJ, Stephen and Brennan JJ all seemed
to treat the ‘cultural and spiritual significance’ of the relics as one of the rea-
sons why the plaintiffs had standing.30 Yet if intellectual and emotional interests
cannot suffice to ground standing, it is not clear why they be capable of help-
ing to ground standing, unless ‘cultural and spiritual’ interests are distinct from
‘intellectual and emotional’ interests, and it is certainly not clear how spiritual
interests differ from emotional ones. Wilson J’s attempt to distinguish the inter-
ests from ‘mere intellectual and emotional interests’ is only partly convincing. He
described the plaintiffs’ interest as ‘deeper and more significant than a mere emo-
tional attachment’,31 but the basis for this conclusion is unclear. Is the criterion
the depth of the attachment of those seeking standing (in which case, subjectivity
rears its impermissible head), or is it to be determined objectively, and if so, how?
A partial answer was suggested by Stephen J who favoured an objective test
based on community values:

Courts necessarily reflect community values and beliefs, according greater weight to,
and perceiving a greater proximity to a plaintiff in the case of, some subject matters
than others. The outcome of doing so, however rationalised, will, when no tangible
propriety or possessory rights are in question, tend to be determinative of whether or
not such a special interest exists as will be [sic] found standing to sue.32

The assumption that courts necessarily reflect community values is question-
able. But his Honour’s observation can fairly be treated as a worthy aspiration,
and as a tacit acknowledgment that the process of assigning weights to interest
involves making value judgments. Arguably, he was articulating what was implicit
in the other judgments. If so, it is not of fundamental importance that the interest
in question is ‘intellectual or emotional’. Rather, what matters is whether weight
should be given to the interest. Weight will reflect judicial assessments of commu-
nity values, guided by law, evidence, guesswork and possibly wishful thinking.
If so, decisions on standing will sometimes appear a little arbitrary, but at least
their basis will be clear.
In the years following Onus a series of Federal Court and state Supreme Court
decisions appeared to depart in several important respects from ACF and even,
perhaps, from Onus. None of these went on appeal to the High Court, but in Bate-
man’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund
Pty Ltd,33 the majority joint judgment contained a somewhat elliptical sugges-
tion that the time had come to abandon the standing requirement. The plaintiff
163
STANDING


contended that a competitor whose market overlapped closely with the plaintiff ’s
had been improperly subsidised from public funds so that it was able to offer the
relevant services at below cost price, with the result that the plaintiff would be
unable to compete. The High Court held that the plaintiff’s economic interest
in the relief sought was sufficiently direct and substantial to ground standing.
It was to be distinguished from ‘competitor’ cases where the nexus between the
decision at issue and the plaintiff’s interest was far more tenuous. In this respect
the decision involved no more than a relatively straightforward application of
established principles to the facts. McHugh and Hayne JJ emphasised that their
decisions were based on the traditional law of standing.34
But dicta in the joint judgment of Gaudron, Gummow and Kirby JJ suggest
that had the issue arisen for resolution, they would have concluded that under
the general law there was no superadded standing requirement in relation to
who might seek injunctions to restrain people from acting in breach of a public
duty:

In a case where the plaintiff has not sought or has been refused the Attorney-General’s
fiat, it may well be appropriate to dispose of any question of standing to seek injunc-
tive or other equitable relief by asking whether the proceedings should be dismissed
because the right or interest of the plaintiff was insufficient to support a justiciable
controversy, or should be stayed as otherwise oppressive, vexatious or an abuse of pro-
cess. The plaintiff would be at peril of an adverse costs order if the action failed. A suit
might properly be mounted in this way, but equitable relief denied on discretionary
grounds. . . .
The result would not be a unique situation. It will be recalled that, in this Court, there
is a body of authority that, even in the absence of a legal interest, ‘a stranger’ to an
industrial dispute has standing as a prosecutor to seek prohibition . . .35

They noted that this approach had been rejected in Gouriet v Union of Post Office
Workers36 and that it had not been the basis for the plaintiffs’ case. They did not
address the fact that it had also been rejected in ACF. But they did recognise that
there might be cases where legislation would impose a standing requirement:

Upon the true construction of its subject, scope and purpose, a particular statute may
establish a regulatory scheme which gives an exhaustive measure of judicial review at
the instance of competitors or other third parties. An example is the special but limited
legislation considered in Alphapharm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd
for judicial review of successful applications for registration.37

The implications of this dictum are unclear.38 Insofar as it suggests that legisla-
tures can limit the right to seek judicial review, it sits oddly with the High Court’s
constitutionally entrenched administrative law jurisdiction. If (as seems to be
the case) parliament lacks the power to prescribe inflexible time limits within
which applications for constitutional writs and injunctions must be made,39 it is
difficult to see how it could have the power to legislate to restrict the range of
people who may apply to the High Court for prohibition, mandamus or injunc-
tions in the event of jurisdictional error by an officer of the Commonwealth.40
164 AUSTRALIAN ADMINISTRATIVE LAW


It could, of course, limit standing to seek judicial review in the Federal Court or
the Federal Magistrates Court. Given the inconsistent and opaque nature of the
three major High Court decisions, one might have expected that litigants would
have provided the Court with a test case in which it could have resolved these
issues. The marginal importance of the standing rules is evidenced by the fact
that, almost a decade after the decision, the High Court has not yet had occasion
to do so.


Applying the rules
There is a general judicial consensus that the law relating to standing has become
increasingly relaxed.41 While the High Court is partly responsible for these devel-
opments, Federal Court and state Supreme Court decisions have independently
contributed to the development of standing law, and in the area of environmental
decision-making, there are at least some decisions which are, in some respects,
difficult to reconcile with ACF. It is irrelevant that most of these are decisions
under the Administrative Decisions (Judicial Review) Act 1977 (Cth) or the Judi-
cial Review Act 1991 (Qld). The standing requirement under the Judicial Review
Acts are almost identical to those governing applications for equitable remedies
(see below, pp. 169–70). The cases therefore evidence a judicial tendency to
liberalise the standing rules governing both traditional and modern remedies.


Orthodox decisions
Many superior court decisions have involved relatively straightforward appli-
cations of the law as developed in ACF and Onus. Some decisions have denied
standing on the basis of the ACF principles. Examples include decisions that the
nexus between the relief sought and the applicant’s interests was too tenuous
to ground standing,42 and decisions that ideologically motivated plaintiffs were
not affected by a decision any more than were those of ordinary members of
the public.43 Conversely, the Boyce principle that those whose rights are affected
by a decision have standing to seek review of that decision has been the basis
for decisions that plaintiffs who have acquired a right to participate in a for-
mal decision-making process have standing to seek review of decisions which
have deprived them of that right, or which have deprived them of the correl-
ative right to participation in a properly conducted process.44 Non-proprietary
interests shared by relatively small numbers of people have sufficed to ground
standing to seek particular relief.45 Following Gibbs J’s dictum that people might
have an interest in particular environments, standing has been granted to peo-
ple concerned about allegedly unlawful threats to particular environments, and
to groups representing them.46 In land rights cases, where the standing rule is
slightly less generous than it is for judicial review cases, standing has nonethe-
less been afforded to people who have used the relevant land for recreational
purposes.47
165
STANDING


But, to the satisfaction of many commentators,48 some superior courts have
taken a more liberal approach to that taken in ACF.


Organisations’ interests
In ACF, the High Court treated the standing of the ACF as dependent on the
standing of those interests it represented. If its members lacked standing they
could not overcome their problem by incorporating. Even in the 1990s, there
were cases where courts carefully differentiated between members’ interests and
organisational interests.49
In other cases, courts seem to have been less concerned with whether mem-
bers’ interests could ground standing. In Ogle v Strickland50 the question was
whether two clerics had standing to seek judicial review of a decision allow-
ing the importation of an allegedly blasphemous film. The Full Court considered
that the plaintiffs’ vocation and status as priests within organised religious groups
sufficed to give them a special interest in decisions permitting the circulation of
blasphemous material. Yet, as Sackville J pointed out in North Coast Environment
Council Inc v Minister for Resources:

If an organised group regards the preservation of the environment in general, or of an
area in particular, to be of profound cultural and spiritual significance, how does their
standing to challenge decisions threatening the values to which they adhere, differ
from the position of the applicants in Ogle v Strickland? And if the distinction between
a vocational interest in a set of values and an interest based on a deeply held but non-
vocational commitment to those same values is unsound, why should organisations
genuinely committed to the preservation of the environment be denied standing to
complain of (or to claim reasons for) decisions that offend their values? In the end, I
do not think it necessary to answer these questions in this case, but in my opinion Ogle
v Strickland poses them.51

In Australian Conservation Foundation v Minister for Resources,52 Davies J held
that the ACF had standing to seek review of a decision to licence the export of
woodchips which were to be obtained by logging forests which were part of the
National Estate. He also found that a member of the ACF (who had been joined as
an applicant) and who owned property adjacent to, and likely to be affected by,
the relevant developments, lacked standing to challenge the licensing decision.
The latter decision raises questions about the former one. If the latter applicant
lacked standing, it is difficult to see how any member of the ACF could have had
standing, and if that were the case, under ACF (1980), the ACF could not have
standing.
Davies J distinguished ACF: it applied to a local matter and not the National
Estate; support for environmental causes (and indeed the ACF) had increased,
and there was now a community expectation that organisations like the ACF
should have standing to litigate to protect the environment. To deny standing
would be ‘to deny an important category of modern public statutory duties an
effective procedure for curial enforcement’.53 The ACF was well-equipped to
166 AUSTRALIAN ADMINISTRATIVE LAW


represent environmental concerns. It was Australia’s major national conservation
organisation. Its activities had received considerable government support. It had
relevantly lobbied and researched. Substantively, his argument is persuasive,
but legally, his reasoning is difficult to reconcile with ACF.54 But in practice ACF
(1989) prevailed.
In North Coast and Tasmanian Conservation Trust Inc v Minister for Resources,55
Sackville J followed ACF (1989) and did not advert to whether and why organisa-
tions could have standing even if their members did not, and in Right to Life Asso-
ciation (NSW) Inc v Secretary, Commonwealth Department of Human Resources,56
the trial judge and Full Court both seem to have assumed that the Association
could have had standing regardless of its members’ standing, if it had demon-
strated that the cause for which it stood had borne a sufficient relationship to
the decision it wished to attack. In North Queensland Conservation Council Inc
v Executive Director, Parks and Wildlife Service,57 the issue was irrelevant, given
Chesterman J’s reconceptualisation of the standing requirements. But the Right
to Life case indicates limits to the degree to which organisations have standing to
pursue their goals by litigation. Even if they can establish standing without the
need to rely on their members’ standing, they must be able to demonstrate a nexus
between their objectives and activities and the relief which they are seeking.


Sufficient interests
Since ACF, courts have continued to struggle with the question of what consti-
tutes a sufficient interest to ground standing. In effect they have abandoned the
‘intellectual or emotional’ test, notwithstanding continued citation of Gibbs J’s
dictum. Instead, they have used a variety of other tests.


Standing based on the importance of the interest
Stephen J’s recognition that standing issues ultimately require judicial assess-
ments of whether interests warrant protection has been the basis for a number
of decisions which, on their face, are not readily reconciled with ACF or even
Onus. In Ogle v Strickland,58 the question was whether two clerics had standing
to seek judicial review of a decision allowing the importation of an allegedly blas-
phemous film. Fisher J considered that the issue involved a value judgment, the
question being whether the priests’ vocational and professional concerns should
be sufficient to give them standing.59 He decided that it was.
An alternative approach is that of Davies in ACF (1989), who cited (thinly
evidenced) public perceptions and community expectations as grounds for his
conclusion that the ACF had standing to seek judicial review of threats to Aus-
tralia’s natural environment. Implicit in his reasoning is that the ACF’s interest
deserved to be treated as more than a mere emotional or intellectual one.60 Later
cases, however, appear to contain references neither to judicial assessments of
what is important, nor to ‘community values’.
167
STANDING


Is the interest consistent with relevant legislative purposes?
A second approach has been to examine the directness of the relationship between
the applicant’s purposes and relevant legislative policies. Purposes consistent
with those policies may be the basis of a finding that the applicant has a sufficient
interest; purposes inconsistent with the policy will not. This approach overlaps
with the requirement that there be a reasonably direct relationship between the
relief sought and the interest asserted, but it involves different issues. A close
nexus between the relief sought and the plaintiffs’ interests does not necessarily
mean that the relevant legislation seeks to protect those interests.
The legislative purpose approach bears a close relationship to the ‘community
values’ approach, legislation constituting a guide to community values, but unlike
the ‘community values’ approach, it seems to assume that an interest which may
be sufficient to ground standing in one legislative context may not be sufficient
to ground it in another. It is consistent with aspects of the High Court’s analyses
in ACF and Onus, save insofar as it seems to replace questions as to whether the
interest is intellectual or emotional with the question of whether it is sufficient,
given the relevant legislative scheme. It is also consistent with the majority’s
observations in Bateman’s Bay in relation to the relevance of legislation to stand-
ing questions (but sits uneasily with the majority’s reservations about standing
rules).
The legislative purpose requirement seems to have underpinned both stand-
ing decisions in cases involving environmental issues, as well as standing deci-
sions in cases where people with a direct economic interest in doing so, have
sought to challenge decisions made under legislation whose purpose is clearly
not the protection of these economic interests.61 The principle seems to have
become even more firmly embraced following the Full Federal Court’s decision in
Alphapharm.62 While Alphapharm was a decision about standing to seek adminis-
trative review, it has subsequently come to be applied to cases involving standing
to seek judicial review under the Judicial Review Acts. In Right to Life,63 Lindgren
J based his decision that the Right to Life Association lacked standing in part on
the fact that ‘the moral and ethical concern of the applicant is not a public interest
with which the Act evinces a concern’. This consideration also influenced the Full
Court, which dismissed the Association’s appeal. Gummow J observed that ‘Sec-
tion 5(1) of the ADJR Act operates in an ambulatory fashion over a wide area of
federal law. Questions as to whether a particular applicant is “aggrieved” within
the meaning of that provision arise in the context provided by the “enactment”
under which the administrative “decision” in issue was made’.64 Lockhart J based
his decision in part on the fact that the basis for the plaintiff ’s claim did not relate
to matters relating to the ‘quality, safety, efficacy and timely availability’ of the
drug in question or of any other drug, and that the objects of the Association did
not relate to the objects of the Therapeutic Goods Act.65
But the ‘extended’ Alphapharm principle itself has proved controversial. Its
implicit assumption that pieces of legislation can be treated as free-standing
and independent of each other seems problematic, and a number of Federal
168 AUSTRALIAN ADMINISTRATIVE LAW


Court judges have rejected arguments that it has bearing on whether people
have standing to seek judicial as opposed to administrative review.66 While the
authority of several of these observations has been qualified by the High Court’s
decision in Allan,67 the High Court’s decision does not resolve the question of
whether and how Alphapharm applies to applications for judicial review.

Is the interest consistent with fundamental legal policy?
Several judges have suggested a third consideration to be taken into account in
determining whether an interest is sufficient to ground standing, namely whether
the interest is consistent with fundamental legal values. This consideration obvi-
ously overlaps with the ‘legislative purpose’ consideration discussed above, but
sometimes sits uneasily with it. Sackville and Gummow JJ have both expressed
doubts about the decision in Ogle v Strickland – the former on the grounds that
it involved the privileging of Christianity and ran in the face of a legal policy
contrary to such treatment, and the latter on the grounds that it ran counter to
the common law’s policy of protecting civil liberties.68 But if Alphapharm applies
to judicial review, one might argue the regulations disclosed a legislative inten-
tion that parties committed to keeping blasphemous literature out of the country
should have standing. Moreover the assumption that law is a coherent system
of rules, grounded in principle is questionable, and the law of standing stands
as vivid testimony to this. In any case, no decision has turned on the inconsis-
tency between the interest asserted and general legal policies, and Gummow
J’s privileging the common law over the criminal law was rejected in Purcell v
Venardos,69 where Derrington J considered that a victim of a crime had standing
to seek review of a magistrate’s decision not to commit a defendant to trial.


Precedent
The case law illustrates the way in which successive cases can quickly transform
conceptions of what constitutes a sufficient interest. Analogies and distinctions
drawn between consecutive cases can quickly have a cumulative effect such that
the proposition for which a later case is authority may be almost impossible to
reconcile with the law which was the basis for an earlier decision. Onus was
(rightly) distinguished from ACF on the basis of the directness with which the
plaintiffs’ interests were affected, but the Full Court decision in Ogle v Strickland
was based partly on the resemblance between the priests’ interests in Ogle and
those of the plaintiffs in Onus. In two short steps, courts had reached a conclusion
which was difficult to reconcile with ACF.
The same can be said of environment cases. In ACF (1989) Davies J distin-
guished its facts from those in ACF (1980), and set out a number of circumstances
which might justify the conclusion that an organisation had standing to sue, even
if most of its members might have had no more than an emotional or intellec-
tual interest in the decision at issue. In North Coast, Sackville J considered that
standing could be grounded on the existence of similar circumstances, which,
169
STANDING


he recognised, could also bear on whether the organisation could adequately
represent those interests. In North Queensland,70 Chesterman J built on these
decisions (and even on ACF (1980)) and concluded that:

The plaintiff should have standing if it can be seen that his connection with the subject
matter of the suit is such that it is not an abuse of process. If the plaintiff is not motivated
by malice, is not a busy body or crank and the action will not put another citizen to
great cost or inconvenience his standing should be sufficient.71

His decision was followed in a subsequent Queensland decision.72 So ACF (1980)
has been reinterpreted to the point where it is regarded as no longer mandating
requirement that plaintiffs have standing, so long as their claim is not an abuse
of process (in which case it could be struck out regardless of whether the plaintiff
had standing). Yet there had not been even a hint in ACF (1980) that this had
been a problem with the ACF’s claim.73


Standing to seek public law writs

There is considerable authority for the proposition that a ‘stranger’ may apply
for a public law writ of certiorari (for jurisdictional error), prohibition or habeas
corpus. There is less agreement as to the meaning of these dicta, and as to their
current status. Aronson et al have argued that ‘stranger’ does not mean ‘anyone’.
Rather ‘stranger’ means someone who was not a party to the relevant dispute, but
who nonetheless had a material interest in the outcome. They point out that in all
the relevant cases, the interest of the relevant ‘stranger’ was also an interest which
would have sufficed to ground standing under the rules governing standing to
seek ‘equitable’ relief. Their scepticism seems to have been echoed by Aickin J in
ACF.74
Stephen J, however, accepted that strangers (broadly construed) could have
standing to seek public order writs,75 and in subsequent High Court cases there
has been almost unqualified support for the proposition that strangers (in the
broad sense) have standing to seek prohibition, certiorari (for jurisdictional error
and possibly error of law on the face of the record), habeas corpus and (insofar
as it is still available) quo warranto.76
Despite the generous standing rules governing applications for certiorari and
prohibition, it is rare to find cases where these remedies have been sought by par-
ties which lacked standing to seek equitable remedies. In Canberra Tradesman’s
Union Club Inc v Commissioner for Land and Planning,77 Crisp J held that a plain-
tiff which lacked standing under the ACT ADJR Act nonetheless had standing to
seek certiorari to quash a decision allegedly flawed by jurisdictional error. But
this appears to be the only recent case in which a court has found that a plaintiff
had standing to seek some remedies, but not others. In the absence of stand-
ing requirements, there are evidently other filters which serve as the functional
equivalents of these requirements.
170 AUSTRALIAN ADMINISTRATIVE LAW


Standing is, however, a requirement for applicants for mandamus, who must
be able to demonstrate an interest in the performance of the relevant duty.78


Legislation

Legislation governs both standing to seek judicial review and standing to partic-
ipate in administrative decision-making processes. The most important legisla-
tive standing rules bearing on judicial review are those contained in the Judicial
Review Acts. These provide that a ‘person aggrieved’ by the relevant decision,
conduct or failure to act may apply for an order of review. Despite the differ-
ent terminology, the requirement has been interpreted as almost identical to the
‘special interest’ requirement.79 While one encounters occasional suggestions
that the Review Act test might differ from the general law test, these suggestions
have never been developed, and no case has ever turned on the existence of the
differently worded tests.80
There are, however, some contexts in which legislation has liberalised standing
requirements considerably, especially in the area of planning law.81 Section 487
of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) means
that environmental activists and environmental groups will usually have standing
to seek orders of review of decisions under the Act, and similarly broad rules
govern standing to seek orders of review of decisions under the Hazardous Waste
(Regulation of Exports and Imports Act 1989 (Cth): s58A. The Trade Practices Act
1974 (Cth) allows ‘anyone’ to take action in face of a breach of the provisions of
the Act, and ‘anyone’ has been interpreted to mean anyone, regardless of whether
they have a special interest.82
Standing to participate in administrative decision-making is governed by the
legislation which creates the right to participate. Typically, standing is given to
parties whose ‘interests are affected’, and this test has been treated as similar to
the tests governing applications for declarations, injunctions and statutory orders
of review.83 In some important respects, the administrative appeal standing rules
are more generous. For instance, the AAT legislation provides that both incorpo-
rated and unincorporated associations have standing if their purposes are such
as to indicate a concern with the relevant decision, provided that the group and
the relevant purposes were formed and ratified prior to the decision.84
But in some respects, standing to seek administrative review is restricted.
First, standing rules may be expressed narrowly so that the only people with
standing are those who sought a particular benefit,85 or members of a narrowly
defined class.86 Secondly, decisions to refuse benefits may be reviewable, but
not decisions to grant them. The practical effect of this is almost identical to a
rule that limits the right to seek review to those who are denied the benefit,
although an interest group might conceivably want to intervene in a case where
it considers a benefit ought to have been granted.87 Thirdly, even when the test
is whether a person’s interests are affected, courts may interpret this phrase
in the light of its legislative context. This is particularly likely to be the case if
171
STANDING


standing to participate in an administrative process would delay or complicate
decision-making in circumstances where it is desirable that decisions be made
expeditiously and economically, and in cases where the would-be appellant’s
interest is unrelated or contrary to the achievement of the evident purposes of
the Act.88

There is something rather surreal about the standing rules. ACF continues to be
cited, while being distinguished to the point where its demands are treated as
largely irrelevant. The High Court has dropped hints to would-be public interest
litigants that the relevant law might be up for grabs once more, but courts and
litigants have proved remarkably reluctant to make any reference to this invita-
tion. Various criteria are used to justify conclusions that interests are capable or
not capable of grounding standing in particular contexts, but it is not clear which
of the different criteria are to apply. Different standing rules govern applications
for public law orders as distinct from equitable ones, but little turns on this. Leg-
islation sometimes creates generous standing regimes, and sometimes seeks to
limit standing, especially in relation to administrative review.
Some of the doctrinal confusion disappears once one distinguishes between
the ‘private interest’ and the ‘collective interest’ cases. In the former cases, the
standing rules tend to operate in a relatively straightforward manner. It may not
always be clear whether an interest is sufficiently directly affected, and whether
it is too remote from the purposes of the relevant legislation, but the concepts
which underline the decisions are typically straightforward. The ‘collective inter-
est’ cases are straightforward in a different sense. Once one forgets ACF, the
authorities are reasonably consistent. The North Queensland test comes close to
constituting the de facto test for standing, although cautious judges may prefer
to use the multi-factorial approach developed in ACF (1989) and North Coast.
Not all interest groups have standing. The requirement that the body have an
interest consistent with the relevant legislation (insofar as there is such a require-
ment) sets some limits to ‘collective interest’ litigation, but this is a requirement
which can be applied reasonably easily.
But while the law may be relatively clear, its rationale is not. In a sense this does
not matter. Cases almost never turn solely on standing issues, and the functions
served by the standing requirements can also be served by a mixture of economic
deterrence, broadly defined administrative discretions, and discretionary reme-
dies (especially where third party expectations are threatened). Just occasionally,
standing rules may perform functions which other rules cannot: they may enable
the early termination of proceedings which would otherwise give rise to delay
and expense. But their logic is that they may also involve the termination of liti-
gation which would reveal violation by public officials of their legal duties. They
therefore matter, not because they make a detectable difference, but because
they reflect which of two conflicting elements of administrative law is prevailing
at any given time, and this is something in which jurists have a deep intellectual
and emotional interest.
11
Reasons for administrative
decisions: Legal framework
and reform
Marilyn Pittard




To what extent are decision makers obliged to provide reasons for their admin-
istrative decisions? Should they be obliged to give reasons in all circumstances
and for all decisions? Two decades ago, the then-Chief Justice of the High Court
of Australia, Gibbs CJ, stated in the leading case of Public Service Board of New
South Wales v Osmond:1

The rules of natural justice are designed to ensure fairness in the making of a decision
and it is difficult to see how the fairness of an administrative decision can be affected
by what is done after the decision has been made.

In 2006, by way of contrast, the Court of Appeal in the United Kingdom in
Phipps v The General Medical Council2 approved as applicable to administrative
decision-making a statement in English v Emery Reimbold and Strick Ltd:3

[J]ustice will not be done if it is not apparent to the parties why one has won and the
other has lost.

These statements reflect different approaches to the question of whether
administrative decision makers and tribunals should provide reasons to the per-
son affected by the decision. In the first statement by Gibbs CJ, the view is that
providing reasons after a decision is made cannot ensure fairness in the decision
which has already been made. The focus of the second statement by the UK Court
of Appeal is the individual affected by the decision and his or her need to see that
justice has been done.
To a certain extent, these different approaches explain the differing decisions
of the courts in relation to requiring, or not, administrative decision makers to
provide the person affected by the decision with reasons for it. Fairness may be
achieved through ensuring fair procedures during the decision-making process;

172
173
REASONS FOR ADMINISTRATIVE DECISIONS


but once the decision is made, that fairness of process does not dictate that
reasons be given. Sometimes an opportunity for disclosure during the process
may be more important than knowing the reasons for decision. In Fayed’s case,4
the court noted that it is more important to know what the decision maker might
be thinking and have an opportunity to meet any points before a decision is made,
rather than only having the opportunity later to know why an adverse decision
was made. In addition, justice may be done by making it clear why the decision
has been made, after the outcome has been communicated to the person affected.
But does justice demand that reasons be given for all decisions?
These differing policy approaches are also reflected in the preparedness of
parliaments in Australia to legislate to compel the decision maker to provide
reasons in some instances, but to make no such requirement in others, with the
legislative silence about reasons necessitating the application of the common law
with all its vagaries.
This chapter explores and analyses the circumstances in which the legislature
has decreed that reasons should be given by administrative decision makers and
the attitude of the common law courts to imposing on decision makers a duty to
give reasons where the statute does not require reasons to be given. Divergences
between the approaches in Australia and the United Kingdom are explored. A
modern approach is outlined in the chapter as a possible framework for when a
duty should arise. First, some of the specific policy arguments in favour of, and
in opposition to, the requirement to give reasons are discussed.



The role of reasons

Giving reasons for decisions performs several roles and the benefits may be both
private, that is benefiting the particular individuals or parties concerned, or
public, where the benefits go beyond those immediately affected by the decision.


The private benefits
A private benefit is that the persons affected are informed clearly why the deci-
sion, especially an adverse one, is made. The individual’s ability to make an
informed decision about whether to challenge the decision will often depend on
understanding the reasons; this may come from the decision maker’s explana-
tion of the reasoning. The possible legal basis for any challenge to the validity
of the decision may only be revealed in the actual reasons. Was an error of law
revealed in the reasons? Did the decision maker take relevant considerations only
into account? Was the decision made for a proper purpose? Was there evidence,
or sufficient evidence, for the decision? Was the governing legislation correctly
interpreted? Or applied? If expert opinions were required, were there plausible
reasons for preferring one expert’s opinion to that of another expert?
174 AUSTRALIAN ADMINISTRATIVE LAW


Where the statute confers a right of appeal, the person affected may be hard
put to actually exercise that right where the reasons for decision are not apparent:
thus appeal rights might be rendered theoretical if reasons are not given. Simi-
larly, where the decision maker is amenable to judicial supervisory review, that
review may not be possible without the reasons being apparent and disclosed.5
Depending on the circumstances where reasons are not disclosed, the only ground
for review may be the ground of unreasonableness: was the decision so unrea-
sonable that no reasonable decision maker would have reached that conclusion?
Such a ground is usually not readily available.6 Sometimes courts draw infer-
ences that there was no ‘good reason’ for the decision where no reasons are
given.7
The converse of the argument that reasons are relevant to appeal rights or
judicial review is that, where no errors of law are disclosed in the reasons, the
parties may be satisfied that the decision maker has properly made the decision.
Fulfilment of standards of justice and fairness may be enhanced by provision of
reasons. These aspects go largely to the impact on the parties, including their
confidence in the decision maker and arguably the more ready acceptance, if not
understanding, of the decision.8 The feeling of grievance may be reduced where
persons know why the decision is made.9


The public benefits
The wider public may benefit in terms of better administrative decision-making.
Decision makers may act more responsibly – yielding a ‘salutary discipline for
those who have to decide anything that adversely affects others’.10 They may
consider more carefully what is relevant, how legislation is to be interpreted and
applied in the particular instance, thus affecting the very cogency of the decision
and guarding against arbitrary decision-making or decision infected by errors.
Consistency of decision-making may be promoted and enhanced, ensuring that
like cases are treated similarly. Some certainty in outcome in the decision-making
process therefore may be ensured. It may promote openness and increased con-
fidence in the system of decision-making.11 Transparency in decision-making
has been regarded as beneficial to the individual and, where decisions are made
available to the public, will also confer a public benefit in terms of consistency
and the precedent value of decisions.
There is another sense in which the public, or at least a wider group of indi-
viduals than just the immediate parties, may benefit. Groves and Campbell have
argued that decisions which are not ‘bi-polar’ (involving two parties) but which
are polycentric (having an impact on a wider group, such as the granting of a
finite number of licences) may involve different considerations of natural justice
and reviewability.12 Bringing their argument to this context, the provision of rea-
sons in respect of polycentric decisions may be even more significant to the wider
community affected.
175
REASONS FOR ADMINISTRATIVE DECISIONS


Disadvantages of furnishing reasons for decisions

Furnishing reasons may yield some undesirable results. It is sometimes argued
that candour in decision-making might be diminished. Flick identified the pos-
sibility that this may lead to ‘canned reasons’13 – with decision makers virtually
ticking boxes or attaching prepared standardised reasons as to which best fit
the particular case – and masking the true reasons for decision. The High Court
has pointed out, however, that where a ‘formula to cloak the decision with the
appearance of conformity with the law when the decision is infected by one of
the grounds of invalidity prescribed’ is used, ‘the incantation of the formula will
not save the decision from invalidity’.14 However, the routine use of ‘verbal for-
mula’ by decision makers has not been frowned upon by the courts and will not
invalidate a decision where there is no error of law.15 The need to provide reasons
may take time, thereby delaying the outcome. The burdens of decision makers
might be expanded and consequently costs of administration may increase. An
indication of the increasing burdens imposed can be gleaned from the Annual
Reports of the Administrative Review Council in which staff hours dealing with
requests for reasons under the Administrative Decisions (Judicial Review) Act 1977
(Cth) (ADJR Act) are calculated.16
Further, the effect of the provision of reasons may be to render some decisions,
which should be beyond the supervision of the courts, reviewable.17 In other
contexts it has been argued that some government decisions are not suitable for
review by the courts, where they contain wide discretions and no guidance as to
how they are to be made. In such instances, the giving of reasons may serve no
real purpose, as they will never be able to be shown to be ‘wrong’ or infected with
error.18 The courts have highlighted these policy reasons from time to time and
we will return to them.



Right to reasons and duty to give reasons
under statute

Parliaments at state and federal levels have intervened in two ways to ensure
that persons affected by certain decisions have a right to know the reasons and
conversely that decision makers are under a duty to furnish those reasons: via
the administrative law statutes and express subject-specific legislation.


The administrative law statutes
A powerful impetus in favour of conferring rights and obligations in relation to
reasons was the so-called ‘New Administrative Law’. The conferral of appeal rights
to administrative appeals tribunals (for example, Administrative Appeals Tribunal
176 AUSTRALIAN ADMINISTRATIVE LAW


Act 1975 (Cth) [AAT Act]) and the provision of more streamlined access to judicial
review (for example, the ADJR Act) have brought with them the conferral of the
duty.19 The hallmark of these statutes is that the duty arises in respect of decisions
which either can be appealed to the appeals tribunal20 or are judicially reviewable
under the streamlined schema.21 The clear underlining policy was that access to
appellate tribunals or courts exercising judicial review may be impeded if reasons
for decision could not be accessed.22
The administrative law statutes generally do not seek to impose an obligation
on those decision makers to give reasons for each decision at the time it is made.
Rather, the legislation entitles persons affected by relevant decisions to request
reasons; and the duty to give reasons is activated only upon request, usually
within a specified period of the decision.23 Hence the duty is very much linked
with the path to appeal or judicial review; and perhaps satisfying the person
making the request that there is no error or miscarriage of justice.
Some other common threads can be discerned in this legislative approach to
the giving of reasons. Generally, the statutes impose an obligation on decision
makers to supply reasons within a specified time after the request is made.24
Usually the legislation identifies what is required by the tribunal or administrative
decision maker to fulfil the duty: providing findings of facts, materials on which
those findings are based and statement of reasons.25 Some of the applications to
seek reasons shift to whether the statute applies to the decision in question.26


Subject-specific legislation
An additional approach by parliaments is to prescribe the duty on decision mak-
ers under subject-specific legislation – in the field covered by the statute, the
statute specifically addresses whether the reasons for decision should be given,
and whether they should be given when made or upon request. Over the years,
there has been a burgeoning of this type of legislation which expressly confers
rights to reasons for certain decisions. The power to require reasons rests clearly
with parliaments, federal or state, and the decision about whether to require rea-
sons is deliberately and consciously made within the context of the subject area.
Numerous examples abound27 including decisions about benefits such as cancel-
lation and suspension of pensions,28 decisions about licensing of racing29 or reg-
ulating gambling,30 decisions about cancelling registration (for example, a home
educator’s registration),31 and decisions relating to environmental matters32 or
regulation of suppliers.33


Decisions outside the statutes
The ADJR Act34 and some state Acts provide for schedules of exemptions excluding
certain administrative decision makers from the obligation to provide reasons.35
As schedules can be easily altered (as can classes of decisions exempt by reg-
ulations under the ADJR Act)36 decisions amenable to the express duty to
177
REASONS FOR ADMINISTRATIVE DECISIONS


give reasons can expand or contract depending on parliament’s policy, thereby
arguably altering effective supervisory review of the courts over such decisions.37
However where statutes remain silent on the question of giving reasons or
where the types of decisions are not covered by the administrative law statutes
(for example, a particular decision is not ‘under an enactment’ in the ADJR Act),
the existence of a duty, or not, to give reasons must be determined by the common
law.


The common law attitude to giving reasons

What does the common law say about the obligation to give reasons? The com-
mon law courts are themselves very familiar with the concept of giving reasons
as they are usually required, to not only make a decision in the matter before
them requiring adjudication, but also give reasons for the decision.38 Provision
of reasons is part and parcel of judicial decision-making, whether the cases are
in private law (such as contractual dispute between parties); public law (such as
judicial review by superior court of tribunal’s decision); or criminal law (such as
the outcome of criminal prosecution).
Decisions by administrative tribunals and decision makers may have signifi-
cant consequences for individuals – for example, granting a licence to sell liquor
may affect livelihood. Some tribunals are court-like in their adjudicative process
and procedure – they hold oral hearings; receive written and oral testimony;
permit legal representation; sit in open proceedings; rule on admissibility of
evidence, and so on. Some tribunals are less formal, determining their own pro-
cedure, not bound by the rules of evidence; and preclude lawyers from advo-
cacy before them. Other tribunals may consider matters on the papers only, not
undertaking oral hearings. At the other end of the spectrum is the individual
administrator, minister, commissioner or other person empowered to make the
decision – who considers either the written record only (such as applications with
supporting material), or an oral request. What is the attitude of the common law
courts to the obligation on these different decision makers to furnish reasons for
their decisions when there is no statutory duty?
In Australia, the High Court decision in Public Service Board of New South
Wales v Osmond39 in 1986 remains authority for the proposition that at common
law there is no general duty on administrative tribunals and decision makers
to give reasons for their decisions. The case arose out of proceedings taken by a
disappointed applicant for promotion within the New South Wales public service.
Mr Osmond had sought appointment (by promotion) to the position of chair of
the Local Lands Board. The convenor, on recommendation of the departmental
head, recommended another appointee; and Osmond’s appeal under s116 of
the Public Service Act 1979 (NSW) was dismissed by the Public Service Board
(PSB). The PSB gave no written reasons as to why Osmond was not the preferred
candidate. Osmond, in seeking a declaration from the New South Wales Supreme
178 AUSTRALIAN ADMINISTRATIVE LAW


Court, argued that the PSB was under an obligation to provide reasons: the court
did not make the declaration sought. The New South Wales Court of Appeal, on
appeal, held that the PSB was under such a duty.40 The majority of the court was
largely informed or influenced by the following in coming to its decision:

• The law on the point in Australia was not settled;
• The law in other jurisdictions, notably the United Kingdom, United States of Amer-
ica, Canada and India, had made inroads by obliging decision makers to provide
reasons for decision;

Principles of good administration and policy reasons relating to fairness in
decision-making supported the positive duty to provide reasons.
The judgment of Kirby P, then-President of the Court of Appeal, remains a
focus today for an evaluation of the rationale for the duty; and is exemplary of
the possible role of the judiciary in resolving the law in favour of appropriate social
and administrative ‘good’. On further appeal to the High Court, the reforming
approach on the issue adopted by the Court of Appeal was abruptly curtailed.
The High Court examined the reasoning of Kirby P in relation to the United
Kingdom authorities, and on reviewing those authorities came to the opposite
conclusions. The court indicated that there was no general duty to give reasons for
the decision, and that the law was clear. Policy reasons in favour of the general
duty played little part in the reasoning of the High Court, even though Gibbs
CJ acknowledged that ‘most people would agree that it is desirable that bodies
exercising discretionary powers of the kind now under consideration should as
a general rule give reasons for their decisions’.41
However, policy reasons opposing the duty held sway with the court: the
burden on decision makers; increased cost; delay; possible ‘lack of candour’42 in
the reasons declared by decision maker. Moreover, given that the law was clear
that there was no general duty to give reasons, the court was reluctant to step in
and make new law, preferring to leave that role to the Parliament. It also observed
that legislatures had enacted obligations to give reasons in administrative statutes
and had done so after extensive policy review and debate; Parliament, rather than
the courts, was the more appropriate body to undertake that task of reforming
the law.
Gibbs CJ cited with approval Glass JA in the Court of Appeal who said:

The proposal [ie submission by Mr Osmond’s counsel] would subject New South Wales
administrative tribunals to control by the courts in a blunt undiscriminating way as
compared with the finely tuned system operating federally. I believe that judicial inno-
vation under these circumstances is not justified.43

The court had fallen back on the not unfamiliar argument that judges should
not be creative in making new law. The High Court, although rejecting the general
duty to provide reasons, explored the question whether special circumstances
might justify the obligation in this instance; and answered this question in the
negative. The PSB considered issues which were ‘simple and well defined’,44 that
179
REASONS FOR ADMINISTRATIVE DECISIONS


is ‘which of the two officers had the greater efficiency, and if neither of them had
greater efficiency than the other, which was the senior?’.45 Osmond not only had
the means to know the issues canvassed on appeal but could easily infer upon
which paragraph of the governing statue the PSB had relied.
The Osmond decision was subject to widespread commentary, with some opin-
ion expressed that an opportunity had been lost by the High Court.46


Post-Osmond’s case

Osmond was decided over two decades ago yet it remains the prevailing and
unchallenged view, at least at High Court level in Australia, on the common law
duty. Whilst some subsequent cases have adhered to the general rule in Osmond,47
others have decided that the circumstances warrant a duty to give reasons. For
example in McIlraith v Institute of Chartered Accountants,48 the Supreme Court
of New South Wales held that a disciplinary committee, which had suspended
the applicant from membership and ordered payment of costs, and an appeal
committee had breached procedural fairness by failing to furnish reasons, the
basis of this view being that reasons were required ‘in a complex factual dispute
with a very wide ambit of evidence’.49 In Attorney-General (NSW) v Kennedy Miller
Television Pty Ltd,50 the New South Wales Court of Appeal was prepared to imply
a duty on assessors for costs to give reasons for their decisions, and earlier, in a
strong judgment in Cypressvale Pty Ltd v Retail Shop Leases Tribunal,51 Fitzgerald P,
although in dissent on the issue of the duty to give reasons which the majority of
the Queensland Court of Appeal had not been required to decide, was clearly of
the view that there was such a duty:

It is not really surprising that, in a complex society in which there is a proliferation of
tribunals with power to affect citizens’ rights and liabilities, the courts have come to
insist that it is an incident of a duty to act fairly that decisions be adequately explained.52

Further, his Honour acknowledged that the ‘nature and extent of the obliga-
tion to give reasons varies according to the circumstances’53 and concluded that
‘the obligation is, after all, an aspect of the duty to act fairly in the particular
circumstances’.54
Other ways to access reasons for decisions include through a judge’s order
made at directions’ hearing in proceedings challenging administrative decisions.
The New South Wales Supreme Court’s Practice Note55 provides that, in such pro-
ceedings, a judge may direct the decision maker to supply written reasons for the
decision which has been challenged, plus findings of fact, reference to evidence
on which findings are based, the decision maker’s understanding of the rele-
vant law and the process of reasoning. In addition, where appropriate, the court
could make such orders ‘by way of particulars, discovery or interrogatories’.56
New South Wales remains the only state to provide this vehicle for access to
reasons.
180 AUSTRALIAN ADMINISTRATIVE LAW


Perhaps surprisingly, the debate in Australia has not really extensively can-
vassed whether it is an integral part of the duty of fairness to provide reasons
for decision. Certainly the High Court in Osmond thought not – but concepts of
natural justice have become more finely-tuned, arguably sophisticated and cer-
tainly well aired since then, but not in the context of the duty to give reasons. This
may in large part be due to the significant statutory intervention conferring the
obligation to provide reasons. However, as discussed, there are gaps in this cov-
erage; and parliaments, Commonwealth and state, retain the power to remove
that duty. The obligation is entrenched only so far as the parliaments permit.


Effect of not giving reasons

What is the effect of failing to give reasons when required? In many instances,
the court will make an order to furnish those reasons.57 There are often disputes
as to whether the content of reasons given is adequate and has fulfilled the duty,
and an order may be made to compel the giving of full reasons.58 Where there is
a total failure of giving reasons in breach of the duty, there is the vexed question
of what the result is of that failure on the decision itself.59 Statutes expressly
conferring the duty may specify the consequence of the breach as not invalidating
the decision.60 In the absence of such specification, the failure may be an error of
law,61 and may justify setting aside the decision.62 To hold that the decision itself
is null and void solely on the basis of the decision maker not supplying reasons
may be at odds with one outcome desired by the person affected – to simply obtain
the reasons.63 Could a null decision be engineered by requesting from a tribunal
known to be reluctant, or slow, to give reasons – even where those reasons would
not otherwise disclose any errors? Logic has it that where the error has arisen by
non-compliance with a post-decision request, the validity of the decision itself
should not be questioned for that reason alone.


Developments in the United Kingdom

Although the United Kingdom does not have the same developed administrative
law statutory framework as exists in Australia,64 the recent common law approach
in the United Kingdom should be considered. Courts in that jurisdiction started
from the original premise that at common law there was no general duty to give
reasons for decisions.65 However, developments indicate that the UK courts seem
more prepared today to consider exceptions to the general rule that there is no
duty to give reasons; indeed Lord Justice Wall in Phipps v General Medical Council
stated that ‘the common law does not stand still, particularly in the developing
area of the need for judges and tribunals to give reasons for their decisions.
Thus, it seems to me that what was exceptional in 2001 may well have become
commonplace in 2006’.66
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REASONS FOR ADMINISTRATIVE DECISIONS


Courts seem to have been more willing to impose a duty to supply reasons, at
least of a summary or brief explanatory form. Consistent with a trend to increased
openness in matters of government and administration, the courts have indicated
the duty on a case-by-case basis, including for example in:
R v Civil Service Appeal Boards; Ex parte Cunningham67 where the Court of
â—Ź
Appeal held that natural justice required the Civil Service Board to give rea-
sons for its decision to award minimal compensation only, for a dismissed
(tenured) prison officer, given he was unable to appeal to an industrial
tribunal which would have supplied reasons;68
Stefan v General Medical Council69 where the Privy Council held that
â—Ź
although there was no express or implied statutory obligation on the Gen-
eral Medical Council to give reasons for its decision to suspend indefinitely
the registration of a doctor, ‘there was a common law obligation to give at
least a short statement of reasons’ so as to inform the parties in broad terms
why the decision was reached; and
Denman v Association of University Teachers,70 where the Court of Appeal
â—Ź
held that the Employment Tribunal was under a duty to give reasons and
had not fulfilled its duty by providing sufficient reasons in respect of the
discrimination claim.

The courts have also identified cases where ‘the subject-matter is an interest so
highly regarded by the law (for example, personal liberty) that fairness requires
that the reasons . . . be given as of right’.71 Such a duty was required in respect of
a decision to impose psychiatric treatment on a non-consenting adult.72
The approach of the common law has been described as one of ‘incremental
development’.73 Given this, it is not surprising that some decisions in the common
law’s developmental journey have been held not to attract the duty.74
More significantly, the United Kingdom appears to be moving towards a gen-
eral obligation of explanation for the decision. Perhaps in acknowledgement that
requiring precise standards of statements of reasons may set the bar too high for
many decision makers or be too burdensome, the courts have been more willing
to impose a duty to explain the reasons so that the parties understand why they
have won, or lost. The Court of Appeal in English v Emery Reimbold and Strick
Ltd75 justified the approach in this way: ‘[W]e would put the matter at its simplest
by saying that justice will not be done if it is not apparent to the parties why one
has won and the other has lost.’
In Phipps’ case,76 Lord Justice Wall was of the view that the decision in English
could apply also to ‘any tribunal charged with the duty to reach a judicial or
quasi-judicial conclusion’.77 Have we reached the point where it is now a mat-
ter of semantics? The common law’s failure to require a general duty to give
reasons is being eroded by the new notion of the duty to explain. This duty to
explain acknowledges that tribunals and decision makers are not courts; that
sophisticated lawyer-like analysis and explanation are not warranted – so long
182 AUSTRALIAN ADMINISTRATIVE LAW


as the parties are given information to understand why the conclusion has been
reached.
The content of reasons, too, will be influenced by various considerations. In
Denman’s case, the Court of Appeal considered that the tribunal, having found
evidence which might lead to inferences of racial discrimination (either conscious
or unconscious) being drawn, ‘was under a clear obligation to explain fully why
it had decided not to draw them. In other words, it had to give reasons for its
decision’.78 Standards for reasons sometimes include the necessity to state con-
clusions on facts which are essential to the legal conclusion.79 Similarly reasons
may be inadequate where a tribunal adopts one line of evidence which is at odds
with the weight of evidence. In The Queen on Application of ‘H’ v Ashworth Hos-
pital Authority,80 the tribunal, in deciding whether ‘H’ could be discharged from
a mental hospital, was faced with conflicting expert evidence and the Court of
Appeal stated that ‘[i]n such cases, it is important that the tribunal should state
which expert evidence (if any) it accepts and which it rejects, giving reasons’.81
The need for reasons becomes more significant when the tribunal adopts the
minority view, rejecting the majority of experts.


Modern approach: A framework for giving reasons

The strong private and public benefits from furnishing reasons, as discussed ear-
lier, remain. Appeal rights would be facilitated and judicial review’s role, as the
protector of individuals from abuse of power by government and decision mak-
ers, would be enhanced by requiring reasons. It can also be strongly argued that
where procedural fairness is applicable, an aspect of such fairness includes the
provision of adequate explanation. Moreover, in the decades since Osmond, some
of the opposing policy reasons have diminished in importance. Record-keeping is
more sophisticated, aided by computer systems; decision makers are more highly
trained; there is a more accepted use of ‘pro-formas’ or templates for decisions –
and all these diminish administrative burdens and aid decision makers. The tri-
bunals’ workload argument seems to be treated less sympathetically today as a
policy reason. In the Ashworth Hospital case, for example, Lord Justice Dyson
rejected this as justification for providing inadequate reasons where there was a
duty to furnish them:

If tribunals do not have the time and back-up resources that they need to discharge their
statutory obligation to provide adequate reasons, then the time and resources must be
found. Either the reasons are adequate or they are not, and the sufficiency of resources
is irrelevant to that question.82

There is in any event a greater promotion of openness by way of freedom of
information legislation enabling records to be accessed; and providing reasons
is consistent with such openness.83 The contemporary focus on individual rights
generally, including human rights, increases an individual’s awareness of their
183
REASONS FOR ADMINISTRATIVE DECISIONS


rights to administrative justice, and perhaps creates expectations of individuals
in knowing, precisely, ‘why?’.


Guiding principles
Can a model, then, for when administrative decision makers should give reasons
at common law be identified and advanced? In Phipps, Lord Justice Wall, in clear
obiter dicta, put forward some guidance for tribunals in the giving of reasons.
His Lordship, whilst acknowledging that the case was ‘not a proper forum for the
promulgation of guidelines’84 nevertheless posited a general guiding principle
as follows:

In every case, as it seems to me, every Tribunal . . . needs to ask itself the elementary
questions: Is what we have decided clear? Have we explained our decision and how
we have reached it in such a way that the parties before us can understand clearly why
they have won or why they have lost?85

An appropriate explanation may require reasons for a particular finding or
findings of fact.
This guidance of Wall LJ was given in the context of, first, a decision of a
tribunal; and second, a decision where ‘[v]ery grave outcomes are at stake’86
entitling persons affected to know the reasons for the findings.


Proposed framework
Building on the approach outlined by Wall LJ, we can identify a spectrum of types
of cases where a full explanation of reasons should be given. Cases involving
loss of liberty, for example, may require higher standards in relation to reasons
compared to cases where a lesser right or expectation is affected. Loss of right
to livelihood, denial of welfare benefits where there is no alternative means of
support, withdrawal of rights to permanently reside in a country similarly also
carry severe consequences for the individual – and justice may be done when the
individual is told, fully, why. Thus, the nature of the issue and the importance of
the decision may tilt the scales in favour of imposing the duty to explain, and to
explain fully.
A lower level duty then, it is suggested, may be imposed on decisions with
less severe consequences. Fairness may be satisfied by an explanation without
such high standards of reasons being furnished. This may apply to decisions even
where a tribunal is involved (such as in Osmond concerning promotion) or in
which the decision maker is not a tribunal, for example, Departmental decisions
made by government officers (such as about entitlement to allowances). The
fulfilment of the duty to explain may be easily satisfied by pro-forma statements
of reasons, evidenced by indicating which reasons apply in a particular case (the
‘box ticking’ approach). This requirement, albeit at a lower level, would also
encourage the decision maker to address the cogent and relevant reasons, and
184 AUSTRALIAN ADMINISTRATIVE LAW


to consider the relevant legislative schema. Errors may be readily rectified by
individuals supplying information, informally seeking reappraisal by the officer
or supervisor and/or using any internal mechanisms for review. Even where
decisions are essentially left to less senior administrators to be made in the name
of the person empowered to decide (under the Carltona principle),87 the nature
or significance of the decision itself will assist in determining the need for, and
content of, reasons.
Costs of administration, coupled with administrative burdens, are unlikely to
escalate where the ‘pro-forma approach’ is used in ‘lower’ level cases. The High
Court in Minister of Immigration and Ethnic Affairs v Wu88 acknowledged that the
standard of reasons was to inform ‘and not to be scrutinised upon over-zealous
judicial review by seeking to discern whether some inadequacy may be gleaned
from the way in which the reasons are expressed’.89 As Kirby J indicated in the
same case, the departmental officers were not ‘untrained laymen’.90 They were
experienced, had access to legal advice, were familiar with relevant legal author-
ity and ‘[s]tandard paragraphs for their decisions were prepared evidencing what
were suggested to be considered positions on common matters of approach which,
it was accepted, they had to take into account’.91
Thus the High Court has accepted that the reasoning need not always conform
to the extent and content of reasoning required of judicial bodies; the decision
maker is not a court of law; and that prepared reasons may be used. The ‘green
light’ from the High Court in this regard seems to be a significant acknowledge-
ment that the standards may be lower than those expected of judicial bodies.
This comes very close to fulfilling the ‘duty to explain’ proposed in the UK.

We have seen that the High Court’s view in Osmond, that there is not a common
law duty to give reasons for decision, still generally prevails in Australia. Statu-
tory intervention under the new administrative law Acts and the subject-specific
legislation provides a duty in particular instances only and does not have uni-
versal coverage, lacking uniformity in approach and operation. The approaches
of the UK courts to impose a common law duty incrementally and develop a
‘duty to explain’ have been analysed. The need for a review of the application of
Osmond 20 years later in accordance with contemporary standards of openness
and accountability is apparent.
A framework has been proposed for ensuring that more significant decisions
attract the duty to give reasons, and that the lower level decisions attract at least
a duty to explain in a variety of modes.
12
Relevant and irrelevant
considerations
Naomi Sidebotham




If, in the statute conferring the discretion, there is to be found expressly or by implication
matters which the authority exercising the discretion ought to have regard to, then in
exercising the discretion it must have regard to those matters.1

Failure to comply with Lord Greene’s well-worn directive may render a decision
ultra vires for failure to take into account a relevant consideration. Conversely,
if there are matters to which a decision maker clearly should not have regard, a
decision may be ultra vires for taking into account an irrelevant consideration, if
such factors are indeed taken into account.
This ground, or perhaps more accurately grounds, of judicial review are
enshrined in both common law and statute. The Commonwealth Administra-
tive Decisions (Judicial Review) Act 1977 states in s5(2) that an improper exercise
of discretion includes (a) taking an irrelevant consideration into account in the
exercise of power and (b) failing to take a relevant consideration into account in
the exercise of power. Their history, however, has not been spectacular. From the
Wednesbury case2 through to foundational Australian cases such as Minister for
Aboriginal Affairs v Peko-Wallsend Ltd3 and Sean Investments Pty Ltd v MacKellar,4
courts have presented the task of judicial review of an administrative decision on
the considerations ground as a simple and straightforward exercise in statutory
interpretation. Parliament confers discretionary power on a decision maker, the
limits of which can be simply ascertained from a reading of the relevant legisla-
tion. Importantly, these early cases emphasised a narrow role for the courts, one
which was mindful of the legality/merits distinction and dictated that the courts’
task was no greater than that of ensuring compliance with the legal limits of a
discretionary power. The decision maker’s right to decide the merits of the case
was upheld.5 In recent years, however, largely as a result of increasing migration

185
186 AUSTRALIAN ADMINISTRATIVE LAW


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