Statements of
reasons for decision
Legal Eagle Series – Presentation to
Institute of Public Administration
Australia
Greg Wrobel
26 July 2016
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Overview
• Why give reasons?
• What is the purpose of reasons?
• Matters to be covered:
• The duty to give reasons (at common law and under statute, including Rule 59.9
UCPR)
• Construing statutory requirements to give reasons – HCA decision in Wingfoot
Australia Partners Pty Ltd v Kocak (2013)
• Practical tips for preparing statements of reason
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The duty to give reasons
• Common Law position
• Public Service Board of NSW v Osmond (1986)
• General Rule –no common law duty to give reasons where decision-maker exercises
discretionary statutory powers to make a decision
• There may be “special circumstances” where general rule does not apply and
reasons must be given
• E.g. see Attorney-General v Kennedy Miller Television (1988)
• Wingfoot Australia Partners Pty Ltd v Kocack (2013)
• HCA reaffirmed general rule in Osmond
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The duty to give reasons
• Commonwealth
• s28(1) Administrative Appeals Tribunal Act 1975
• s13 Administrative Decisions (Judicial Review) Act 1977
• Specific legislation
• s29 Freedom of Information Act 1982
• s 25D Acts Interpretation Act 1901
• s15 Ombudsman Act 1976
• Policies
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The duty to give reasons
• New South Wales
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ss49-52 Administrative Decisions Review Act 1997
Specific legislation
Rule 59.9 Uniform Civil Procedure Rules 2005 (UCPR)
Policies
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Part 59 UCPR
• Overview
• Part 59 UCPR
• Commenced on 13 March 2013
• Applies to judicial review cases in SCNSW (Common Law Division) & L&EC
• Covers wide range of matters
• Rule 59.9 UCPR
• Statement of reasons
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Rule 59.9 UCPR
• Specific Requirements
• Plaintiff has 21 days from commencing proceedings to send a notice requiring a
statement of reasons to be provided
• The statement or reasons must:
• set out findings on material questions of fact;
• refer to evidence or other material on which those findings are based; and
• Explain why the decision was made
• If not provided, plaintiff can apply to the court for an order (discretionary)
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Construing statutory requirements to give reasons
• Wingfoot Australia Partners Pty Ltd v Kocak (2013)
• Principles:
• There is no free-standing common law duty to give reasons for making a statutory
decision – restatement of rule in Osmond
• Duty to give reasons and the context of that duty is ‘no more or less’ than that
imposed by the statute
• The content of the statutory duty defines statutory standard that a written
statement of reasons must meet to fulfil it
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Construing statutory requirements to give reasons
• Principles (continued):
• Standard required of a statement of reasons (to satisfy the statutory duty) is
determined as an exercise of statutory construction
• If no express requirements are set out in the statute, the standard may be
determined only by a process of implication
• As this involves construing a particular statutory provision, general observations
about the functions served by the provision of reasons are of limited utility
• Focus on the standard required of a particular decision-maker, in a particular
statutory context
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Practical tips for preparing statements of reason
• Language
• Audience
• Plain English
• Clear, unambiguous
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Practical tips for preparing statements of reason
• Content
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Decision
Process
Main facts and finding
Reasons
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Practical tips for preparing statements of reason
• Communication
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Formal and procedural matters
Decision
Reasons for the decision (i.e. the “content”)
Any rights of the person affected
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Key Contacts
Greg Wrobel
Partner
T +61 2 8083 0411
E [email protected]
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Thank you
Disclaimer
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