How Has the Law Regarding the Common Law Right to Reasons for Decision Differed Between Australia and the Uk in Light of Osmond?

A general rule requiring reasons for decisions has been on the common law agenda since recommended in the UK by the Franks Committee in 1957, which argued that it is a necessary law for facilitating open government. The ADJR act brought a right to reasons to many administrative decisions but the powers not covered by the limited (and decreasing) scope of the ADJR left a gap in Australian law that many hoped the common law would fill.

BENEFITS TO REASONS

In the New South Wales Court of Appeal Kirby J created a general rule of the common law of a right to reasons for decisions in Osmond. This was emphatically reversed in the High Court, to the surprise of many commentators. Chief Justice Gibbs ruled that no general right to reasons existed, his arguments based heavily on the decisions of English courts.

Right to reasons for decision in English law

At the time of Osmond the law on right to reasons in Australia and England was very similar. In England it was recognised that there was no general right to reasons in cases which Gibbs J discussed. However while these cases confirmed that there was no general right to reasons they were each offering indirect routes to obtain reasons for decisions. In the UK over the decade following Osmond these cases were not viewed as limiting a right to reasons but the beginning of a trend towards a right to reasons.

Rather than indirectly requiring a right to reasons, a series of cases in the early nineties directly linked a right to reasons with procedural fairness, which some UK judges prefer to speak of as a duty to ‘act fairly’, a broader term not tied to the rules of natural justice. XXThese decisions may have formed two classes of cases where reasons were required, cases where the decision was abberant or unusual and cases where the subject matter of the decision is consequential or important in law.

Following these cases has been Murray in which Lord Chief Justice Bingham ruled that reasons should be given in the interests of fairness when a body had the power to affect individuals, criteria that should be wide enough to allow any court to require reasons for decisions if it wishes. Two years later the Privy Council ruled that the General Medical Council required reasons to suspend a medical practitioner despite no statutory requirement to do so. In the judgment Lord Clyde stated, “what were once seen as exceptions to a rule may now be becoming examples of the norm”.

Post Osmond developments in Australian administrative law

The law regarding a right to reasons in England has differed noticeably from Australian law over the last twenty years, however other substantial developments have been chipping aways at the scope and legitimacy of Osmond as well.

In Campbelltown the NSWCA distinguished Osmond on the grounds that it only applied to administrative decision making. This is a valid point considering the specific references to administrative decision making in Osmond however it may also demonstrate a move to limit the application of Osmond.

This notion is futher evidenced by Practise Note 119 issued by Spigelman CJ for the NSW Supreme Court which states that a Judge may direct a decision maker to provide reasons for decision at a directions hearing. There is no mention of a statutory right to reasons. Spigelman also notes moves towards a common law source of judicial review positively. While Spigelmen doesn’t claim that a duty to provide reasons exists, these are further examples of a trend away from Osmond.

Statutory support for a right to reasons has been adopted in New South Wales in the form of the Administrative Decisions Tribunal Act. The act places an obligation of reasons on the decision maker. This fact is particularly significant considering that Gibbs J placed weight on the fact that New South Wales had not introduced legislation similar to section 13 of the ADJR act.

Gibbs J stated that it was not appropriate for a court to develop the common law on a parallel course to a different and separate jurisdiction, saying that even though the Commonwealth, Victoria and the UK had enacted legislation requiring reasons for decisions, that should have no bearing on developing common law in New South Wales. Now that similar legislation has been enacted the reasoning of Gibbs J would support a right to reasons.

Also worth mentioning are the changes in the High Court judges. Gibbs J was the leading judge in Osmond and his strong denial of a general right to reasons is one of the reasons Osmond has remained unchallenged, but he has now retired.

Perhaps as important is the appointment of Kirby J who originally created the general right to reasons in the NSWCA and has stated since that he would like to see Osmond reversed, arguing strongly in favour of a general right to reasons. However the most important position of the High Court judges in relation to a right to reasons will probably be their opinions on an common law source of judicial review.

The ultra vires doctrine in England and Australia

The traditional development of administrative law was based on the doctrine of ultra vires. Ultra vires says that the courts have the power of judicial review in order to make sure that administrative agencies do not overstep the power given to them by the legislature. The legitimacy of judicial review is based on the court reviewing decisions to discover the legislative intent.

This view of administrative law requires a severe stretch of language and arguments to be aligned with many modern day forms of judicial review, which really stem from the common law rather than interpretations of legislative intent. For example where “natural justice is imposed upon powers which cannot be sourced to statute or contract” it cannot be true that natural justice was implied in the statute, for there is no statute.

Ultra vires is acknowledged by many to be a fiction (including Sir Brennan in his retirement) however judges and commentators differ in their opinions on acknowledging this in the courts. Craig holds a very negative view of ultra vires and argues that the courts should acknowledge that judicial review is based in the common law. Wade believes that such a shift would result in judges losing the power of judicial review and the ability to defy parliament, because judges have no constitutional right to interfere with action which is within powers granted by parliament. In his textbook he is very clear that judges have absolutely no power to review an administrative act unless the act is ultra vires. The House of Lords have supported this strict ultra vires point of view.

English law has differed to Australian law in that English courts have pushed the extent to which certain categories are artificially fudged into ultra vires. While ultra vires is still officially the basis of judicial review, some argue that it is quite common in the UK to consider ‘abuse of power’ or ‘misuse of power’ rather than a breach of jurisdiction. Abuse of power still rings of controlling the power given to an administrative body by the legislature, but is broad enough to allow more movement within ultra vires, and the term is indicative of the expansion of judicial review power in the UK.

Abuse of power demonstrates the willingness of English courts to stretch the limits of ultra vires to accommodate progress in judicial review. This stretching has led the UK law to effectively a general rule of a right to reasons. Australian courts have not pushed the boundaries of their own power as far. This limits the courts from introducing a right to reasons and may be one of the reasons why there has been such limited growth in this area of law in Australia compared with the UK.

Introducing a right to reasons

Introducing a right to reasons in Australia could be done within ultra vires in the incremental fashion that the UK did. This may be more difficult in to defend in Australia without reversing Osmond considering how clearly it had been decided that reasons for decisions were not a part of natural justice.

The alternative would be to recognise that the right to reasons springs from the common law. This of course would allow the court to fashion a general rule any way if found fit, and would be the ideal course. Indirect methods, rather than a general duty can have hidden downsides.

For example, it has been said that the exception in Wright’s Canadian Ropes, that reasons are required when a lack of reasons would render a right of appeal nugatory, would be a route to fit a right to reasons in existing judicial review. However this right to reasons would not cover decisions where no appeal existed, an area that would most need a right to reasons for decision because they are only able to obtain judicial review.

A general duty stemming from the common law is a more controversial suggestion however, considering Wade’s belief that there would be a real risk of losing the power of judicial review if the courts did not base their power on statutory intent. Would the High Court take such a large step, especially before the UK? Kirby J has indicated that the natural justice rules should stem from the common law in Miah and Gleeson CJ, McHugh, Gummow and Hayne JJ spoke of “common law rules” of natural justice in Epeabaka but the issue has so far been avoided.

Ultra vires is the biggest hurdle to a right to reasons. There are other important practical issues however. Should a right to reasons be based on procedural fairness? What would be the consequences of breaching the duty? Should the court decide that a right to reasons is part of procedural fairness or create a separate general duty? These issues can be argued but it will be left to the High Court to decide them.

The future for reasons for decisions in Australia

Consider the developments surrounding the right to reasons. The English authorities now give a right to reasons for a broad range of decisions. The statutory right to reasons has been extended in NSW. New Zealand and Canada have adopted more liberal positions on a right to reasons. The arguments advanced in Osmond have become outdated.

Also, Osmond may not have been the best vehicle for advancing a right to reasons. If the decision of the Public Service Board had been aberrant, or the the consequencs of the decision important to Osmond, it may have allowed the court to increase the right to reasons incrementally. Instead the court was forced to commit to a position.

Osmond was a critical point in reasons for decision in Australia that perhaps came too early. In the decision of Deane J he said that “the stage has not been reached” where reasons are required for administrative decisions. Australia may well have followed the UK along the same path if it wasn’t for the decisive decision handed down in Osmond.

Whatever the reasons were, Osmond stunted the growth of a right to reasons in Australia before it could develop. Would it be decided differently today, all factors considered? I think so, and it would be a very positive step. What form will the right to reasons be in? That is a more complicated question, but hopefully one that the High Court decides to answer.