Administrative Law

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Thegovernment as a chief decision maker plays a vital role in thedetermination of executive or legislative actions. The validity ofthe decisions arrived at is assessed by the courts of law in theprocess of judicial review. An applicant must know the reason adecision was made to bring an action for judicial review. Theapplicant must express profound knowledge on the details of thedecision because it is on this basis that he will derive the issue ofcontention. Also, understanding the decision enables any right ofappeal to be exercised. Therefore, the government has the duty toprovide information to the applicant whenever it is requested.However, common law has no provisions to compel the right to reasonsas in the case of Public Service Board v. Osmond (1986) 159 CLR 656,where the high court held that the administrative officials are notsubject to a general common law duty to provide reason for theirdecisions.1

Itis worth mentioning in passing that the English law has requiredpublic bodies to respect the growing principles of goodadministration, which as an important aspect the agencies should givereasons for their decisions. The bodies, however, over the years haveexploited the common law position that the reasons need not be givenand the duty to do so can only be realized in certain circumstances.2

Therole of judicial review is to examine whether the public bodies indecision making followed the principles of good administration. Ifthe court finds that there was no adherence to these principles, thenthey have the power to quash such decisions and give directions onthe right procedures. Nonetheless, the action taken by the courtscould only be made possible if relevant information is provided. Itis, therefore, of paramount value that the agencies give theirreasons.3The contention arises at the point such information is required, butthe public bodies presents the argument that they are not compelledby the common law to divulge such information as needed. Forinformation to be given, there has to be new legislation, statutes,and Acts that are enforceable. In essence, the common law practice isrendered inapplicable.4

However,the question is, to what extent do the applicants enjoy the right toinformation? In this article, I will advance the argument thatnotwithstanding the position of the common law, judicial review ispossible with the provision of reason for a decision and therefore,the agencies have a necessary duty to provide information to ensuretheir decisions are checked by the courts upon application to do soand to ascertain that their decisions are made within the ambit ofproper administration.

Understandingthe right to information

Theright to information is extensively discussed in documents andsupported by relevant laws in the Australian legal system. Allcitizens have the right to access information that they require forpublic knowledge or that they need to contest a particular decisionthat has been arrived at by any government agency, and which theydeem as an infringement of individual rights or violation ofprocedural laws. Also, the contest may arise in circumstances whereit is found that the principles of natural justice and fairness isviolated. It is significant to note that, over 20 years later, thecourts still follow the common law provision that there is no duty togive reasons. It is expounded by Lord Mustill in the case of R. vSecretary of State for the Home Department Ex p. Doody (1994) A.C.531 at 564, when he says that “the common law does not at presentrecognize a general duty to give reasons for an administrativedecision”.5In the Doody case, the Home Secretary decided that the claimants(convicted murderers) subject to mandatory life sentences serve alonger minimum detention period. Lord Mustill, however, held thatfairness demanded the giving of reasons, reasoning that the period oftariff was of much significance to the prisoners and its impact ontheir rights and interests was so fundamental, that it wasinconsistent with basic precepts of fairness to permit the Ministerto behave as if a “distant oracle”. Therefore, the caseformulated a defining feature of the duty to give reason as arisingfrom the specific facts of the case. The case is one of thecircumstances in which the duty to provide reason is necessarilyenforced.

TheFreedom of Information Act 1982 of the Australian laws provide indetail the issues addressed in the freedom of information.Individuals have the rights under this Act to request access togovernment documents. The Act allows the agencies to publishparticular classification of information, and permits them topurposefully release other information.6

Mechanismsof Accountability

Onthe far side of the major elements, Australian jurisdictions havealso embraced several other executive accountability mechanisms forinstance, polity of information privacy protection, mechanisms forthe protection of “whistleblowers”, and methods for exposing andinvestigating corruption in public institutions ( popularly known asthe “fourth branch” of government, the “integrity”department). If the administrative law were to be defined in ageneral manner as the law controlling relationships between citizensand the state, then these mechanisms would logically be included.Actually, the term in that sense might also include an examination ofthe legal principles relating to government obligation in contract ortort (including wrongful conduct in public office), or those decidingthe degree to which the executive government is bound by statute.7

TheEnglish law continues to withstand a general duty to give reasons.Specifically, because the consequence of doing so is to treat thatresponsibility in a manner that contrasts with other principles ofproper administration (which are generally taken to engage unlessomitted by the statute or by some compelling characteristic of thecase) it is requisite to inquire whether there is a goodjustification for distinguishing the duty to give reasons in thisfashion. The common response to this interrogation is thatnecessitating reasons are a concern to which decision makers shouldnot, as an issue, of course, be exposed.8

Thefundamental factor is that modern administrative law’s standardmodusoperandiis to address such concerns not by restricting the extent of usage ofpertinent principles of good administration, but through moderatingtheir magnitude (in the sense of the precise degree and content ofthe obligations which they enforce on decision makers). There are twogrounds for choosing this approach. On the one hand, the relevanceof the standard concerns underpinning the principles of goodadministration is invariant. For this reason, we do not encounterdiscretionary powers that need not be applied reasonably or fairly orin respect to the object and purpose of the applicable statute.9On the other hand, the acknowledgment that the principles of goodadministration must function in a way that is sensitive to otherrelevant concerns is resourceful in shaping their primarysignificance and application in given circumstances. For example,while the duty to act procedurally reasonably now attaches to theemployment of any administrative power likely to impact onindividual’s rights, interests or legitimate expectations, thecontent of duty differs dramatically depending on the circumstances.10

Justificationfor reason

Asa non-instrumental justification for requiring reasons, Allan puts itthat: “The giving of reasons by officials, in particular, canreadily be understood as serving a ‘dignitarian’ function quitedistinct from the arrangements for securing sound decisions …[A]nobligation to give reasons may have a beneficial effect on thequality of the decision and in that sense contribute to fairness butwhether or not that is so in any particular case, giving reasons maybe regarded as an integral part of treating a disappointed applicantwith the respect which his dignity as a citizen demands.11

Inthe Palme case, the defining element of reasons is an explanation ofa decision. An apprising brief or other elaborate document mightpropose one or more courses of reasoning open to a decision maker butwill not ordinarily explain the critical issues of why the decisionmaker chose one specific course.12It follows that reasons must also apply more than merely listevidence and state the decision reached. They must explicate thelogic or ‘intellectual process’ by which evidence was used toreach the decision. The cases imply reasons must be sufficientlyelaborated rather than thorough, and that the level of sufficiencywill depend very much on circumstance. Reasons are typically directedto people preoccupied with an issue instead of the public as a whole,so they may adopt a level of knowledge about the issues, or usetechnical terms on those people who are supposed to understand.

Manyarguments can be made for a duty to give reasons. Reasons can centerthe mind of decision makers upon the right issues and demonstrate tothose involved that this happened. The convenience of reasonsascertains justice is administered and seen to be served. A morecultured interpretation of this argument is the dignitarian one thatproviding rights, especially to those who may be discomfited, renderspeople with an indispensable level of comportment. Masses are moreapt to take a result if they consider the process by which it wasarrived at as fair and logical. Reasons can give helpful direction toother cases, much like a kind of administrative precedent. They canalso inform parties of any fault by the decision maker.13Reasons that are distinctly founded on the evidence and thoroughlyformulated may minimize review proceedings because such reasons mightsometimes make people understand that the determination was corrector plainly might endure contest.14There are, nonetheless, various contrary arguments to a generalcommon law duty to provide reasons. One is that it would compel anobligation upon administrative officials, which in turn would createcosts and delays in administration. Those with an inclination towardsthe introduction of a general duty frequently desire to counter thisdifficulty by indicating that any duty would be a situational one,which means that the standard of reasons needed could take account ofthe burden of their presentation.15Another argument against a general duty is that it might deterimpartiality. It might necessitate a mendacious appearance of anagreement in decisions affecting many officials where there weredissonance and diversity. Reasons could also involve revealing ofinformation that should stay confidential, especially in casesregarding national security or other such sensitive matters. Ageneral duty might also lead to problems in situations whereofficials relied upon value judgments that were not resourceful ofsimple manifestation.

Areflection on the progress

Thereport of the Senate Standing Committee on Constitutional and LegalAffairs, which established the basis for the enactment of the Freedomof Information Act 1982, realized three particular vindications forthe stipulation of enhanced access to government information.16They are to increase the responsibility of the government to itspeople, improve citizen involvement in government affairs and qualifya method for the exercise of information privacy rights. It has beenindicated that the Freedom of Information Act has been relativelyprosperous in attaining its information privacy objectives (that is,the provision of rights of access to, and amendment of, applicants’personal records), however, it has failed in achieving its other twogoals.17Government statistics display that the large number of requests areby applicants to their personal records instead of requests by mediaor other groups exercising their general rights of access.18

Also,as lucidly put in the McKinnon proceedings,19access to materials which illuminate the issues of current policyargument continue to be challenging to access. The Moss Reportpropounds that the reasons as to this state of affairs are threefold:“too much scope for interpretation of exemption provisions in waysthat lead to refusal of access to documents about matters of publicinterest and concern cost barriers to access and slow reviewprocess that often fail to provide cost effective resolution ofcomplaints.”

Advocatesof duty to provide reasons admit that it should be universal becausereasons are sometimes unsuitable. Such exceptions explicitly professthe force of different arguments but relay no guiding principle. Theproblem is granted peculiar insight in the Act1978 (Vic) s8(5), which enables decision makers to decline to givereasons if providing them would be against ‘public policy’ or theinterests of the person mainly affected by the judgment.20The latter can be justified by realistic information where reasonscould be prejudicious or interfering with the relevant person. Theability to refuse reasons on the supposition of public policyindicates the criteria that proponents of a general duty would arouseto model any exception, but the scarcity of Victorian decisionsinforms that such instances are uncommon. In a case scenario, GillardJ held that the time and expense usually needed to draft reasonswould not alone make their presentation unfavorable to public policybecause production would typically involve officials articulating thethoughtful process they had applied. That, his Honor concluded, would‘not involve added expense of any substance.` Gillard J recommendedthat demanding reasons could be contrary to public policy if ‘thecost was so prohibitive that it could not have been in thecontemplation of Parliament’.21

Reformsin the Law

TheOpen Government Report contained a myriad of importantrecommendations for reform, many of which were endorsed in an ‘ownmotion’ report readied by the Commonwealth Ombudsman in 1999.22These comprises the establishment of an FOI Commissioner to superviseand better the administration of the FOI Act and to give help, adviceand instruction to applicants and agencies, redrafting of the objectsclause to encourage a pro-disclosure explanation, rationalization ofexemptions provisions to best see that information is denied only ifit is in the public interest to conduct such undertaking andalteration to the charges program to ensure access is moreaffordable.23

Statutesthat demand reasons to be given, or make them possible to berequested, do not commonly outline the supposed effect of any failureto supply reasons. An exception developed in Palme, where a Ministerdid not look for enforcement of the duty to give reasons but rathermentioned that the decision was invalid because it failed to followthat duty.24

Conclusion

Inconclusion, as discussed above, there are many changes that have beenwitnessed over the years concerning the exercise of the freedom ofinformation concerning reason in decisions. Even though many quartersstill employ the common law position, the legislature has come inhandy, creating legislation that has brought a twist to thetraditional view of that matter. The courts, therefore, enjoyextensive discretion based on the statutes to decide whether touphold a decision or quash it.25From the evidence that is adduced in the analysis, I find that theprimary avenue to the exercise of the freedom of information is whenthe legislation gives provision, which is represented as exceptionsto the general common law duty to provide a reason.

1 Public Service Board v. Osmond (1986) 159 CLR 656.

2 Steven J. Lepper, &quotDevelopments Under The Freedom Of Information Act: 1982&quot (1983) 1983 Duke Law Journal.

3 Bishop, K – `Openness in public administration: can the Government keep a secret?` – (1997) 5 Australian Journal of 35.

4 Elliott, Mark. &quotHas the common law duty to give reasons come of age yet?.&quot University of Cambridge Faculty of Law Research Paper 7 (2012).

5 R. v Secretary ofState for the Home Department Ex p. Doody [1994]1 A.C. 531 at 564.

6 Steven J. Lepper, &quotDevelopments Under The Freedom Of Information Act: 1982&quot (1983) 1983 Duke Law Journal.

7 John Goldring, &quotTHE FOUNDATIONS OF THE &quotNEW ADMINISTRATIVE LAW&quot IN AUSTRALIA&quot (1981) 40 Aust J Pub Admin.

8 Mark C. Elliott, &quotHas The Common Law Duty To Give Reasons Come Of Age Yet?&quot SSRN Electronic Journal.

9 John Goldring, &quotTHE FOUNDATIONS OF THE &quotNEW ADMINISTRATIVE LAW&quot IN AUSTRALIA&quot (1981) 40 Aust J Pub Admin.

10 Mark C. Elliott, &quotHas The Common Law Duty To Give Reasons Come Of Age Yet?&quot SSRN Electronic Journal.

11 Harold C. Relyea, &quotFreedom Of Information And The Right To Know: The Origins And Applications Of The Freedom Of Information Act&quot (2001) 27 The Journal of Academic Librarianship.

12 Re Palmer and Minister for ACT (1978) 23 ALR 196.

13 Harold C. Relyea, &quotFreedom Of Information And The Right To Know: The Origins And Applications Of The Freedom Of Information Act&quot (2001) 27 The Journal of Academic Librarianship.

14 &quotAustralia: New South Wales Court Of Appeals: Rixon V. Star City Pty Ltd&quot (2002) 6 Gaming Law Review.

15 Richardson, G `The duty to give reasons: potential and practice`, [1986] Public Law 437.

16 *Freedom of Information Act 1982 (Cth)

17 Thawley, T `An adequate statement of reasons for an administrative decision`, (1996) 3 Australian Journal of 189.

18 Bishop, K – `Openness in public administration: can the Government keep a secret?` – (1997) 5 Australian Journal of 35.

19 McKinnon, Michael &quotMandarins stall FOI requests&quot, The Australian, March 14, 2006.

20

Act 1978 (Vic) s8(5)

21 http://www.withmaliceandforethought.com/pdf/olof_palme.pdf].

22 Needs to know: own motion investigation into the administration of the Freedom of Information Act 1982 in Commonwealth agencies.

23 Open government: a review of the federal Freedom of Information Act 1982.

24 Australian Capital Territory Auditor-General Report—The Freedom of Information Act, – Report No.12 2001

25 Richardson, G `The duty to give reasons: potential and practice`, [1986] Public Law 437.

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