Must a decision-maker provide a statement of reasons?

I act on behalf of clients who have received a decision by an Australian government department or a public official. The power given to such departments or public officials to make such decisions are by legislation.

Such decisions are reviewable by:

-reconsideration by the original decision maker;

-merits review at the relevant Tribunal (ie AAT, VCAT);

-judicial review on the basis of an error of law; or

-complaint to the Ombudsman.

When a decision notice is given to an Applicant, it must generally be accompanied by a document that pronounces the reason for the decision made. This document is commonly known as the “statement of reasons”.

I will briefly summarise in what circumstances a decision-maker may have an obligation to provide a statement of reasons.

There is no particular duty at common law for the decision-maker to provide a statement of reasons. If there is a duty to provide a statement of reasons, it will be due to the governing legislation of a decision.

Generally, the decision-maker will have a duty to provide a statement of reasons where:

  • The decision is reviewable at the Administrative Appeals Tribunal. For example, under Section 28 of the Administrative Appeal Tribunal Act 1975 it states:

“Person affected by decision may obtain reasons for decision

Request for statement of reasons

             (1)  Subject to subsection (1AAA), if a person makes a decision in respect of which an application may be made to the Tribunal for a review, any person (in this section referred to as the applicant ) who is entitled to apply to the Tribunal for a review of the decision may, by notice in writing given to the person who made the decision, request that person to give to the applicant a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision, and the person who made the decision shall, as soon as practicable but in any case within 28 days after receiving the request, prepare, and give to the applicant, such a statement.”

  • The decision can be judicially reviewed at Federal Court; or 
  • the legislation that gives the decision maker the power to make the decision also obliges the decision-maker to set out a statement of reasons. 

Once you receive Statement of Reasons

Once you obtain a statement of reasons, it is important you carefully consider whether the decision-maker has provided any inadequate reasons for the decision.

If you find a mistake or error in the decision-makers reasons you may review the decision.

There are strict time-lines for reviews of a decision and in some circumstances those time-lines are not extendable.

By Farhan Rehman
Partner at RSG Lawyers.
Tel: (03) 9350 4440
Email: farhan@rsglaw.com.au

Footnotes are available upon request.

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