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Finding the reasons for the decision

Under the common law (and prior to 1975 reforms) there was no general right to obtain reasons for a government department's decision. Obtaining the reasons for a decision can help identify if any errors were made and whether a challenge is possible or likely to succeed. Alternatively, it may also help explain to a person affected by the decision why it was correct.

When considering a challenge to a government decision it is generally regarded as an important first step to obtain the reasons for the decision. This is not always easy in situations where many standard notices are generated by computer programs.

Obtaining a copy of the decision

The first stage of attempting to find the reasons is to discuss your request with the relevant government body. This may include the officer who made a decision (such as the Authorised Review Officer named in a Social Security decision) or the officer who signed the letter advising you of a decision.

If this fails a request for copies of the records may be made using Freedom of Information legislation, see freedom of information.

Orders for discovery

It may be necessary to issue legal proceedings to obtain more information from the administrative body about its actions - for example, by seeking an order for the discovery of documents (that is, obtaining access to the government's file and other relevant documents).

These steps may be answered by the government with a claim that the documents are subject to Crown privilege (that is, to reveal documents in its possession would irreparably harm the community's interests). This claim is subject to court scrutiny and courts in recent years have shown increasing reluctance to uphold such claims by government. However, discovery procedures and claims of Crown privilege can be slow and time consuming.

Ombudsman review of decisions not to release information

Not being able to obtain reasons may constitute a basis for a complaint to the Ombudsman, who may determine that it is fair in all the circumstances that reasons should be given.

Statutory obligations to provide reasons

There are also a number of areas where there is a statutory obligation to provide reasons for decisions. Many Acts of Parliament (primarily Commonwealth, but increasingly also State Acts) now require that reasons for decisions be provided. This obligation will of course only apply to the specific decision covered by the Act.

There are also general powers to obtain reasons for decisions. For Commonwealth government decisions, the most common of these is under the Administrative Decisions (Judicial Review) Act 1977 (Cth) [s 13]. Not only is there an enforceable right to obtain reasons for a decision, but those reasons for the decision then constitute the basis upon which a review application can be argued.

There are several limitations on the obligation to supply reasons [s 13A]. A statement of reasons may omit information relating to the personal or business affairs of a person (other than the person making the request) where it is information:

  • supplied in confidence;
  • the publication of which would reveal a trade secret;
  • supplied complying with a duty imposed by an Act;
  • whose publication is forbidden by secrecy laws.

Where such an omission occurs, a reason must be given [s 14]. In addition, the Attorney-General may give a certificate stating that certain matters cannot be disclosed as they are contrary to the public interest where:

  • disclosure would prejudice Australia's security, defence or international relations;
  • disclosure would reveal deliberations or decisions of Cabinet;
  • the situation is one where Crown privilege can be claimed in civil proceedings.

Where information is omitted, a reason must also be given.

There is no equivalent general right to obtain reasons for decisions made by State government agencies. Individual Acts dealing with specific decisions may give a person a right to obtain reasons for a decision.

Finding the reasons for the decision  :  Last Revised: Mon Mar 26th 2012
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.