Good decision-making for government
Reasons for decision
The importance of reasons
A good decision will have reasons that explain and justify it. The key
objectives of public administration and administrative law hinge on
people being able to obtain the reasons for decisions that affect them.
Reasons are essential to fairness in decision-making. Knowing why a
decision was made is an important individual right.
Reasons contribute to rationality in decision-making. They prompt
decision-makers to look closely at the relevant criteria for making
decisions, and at conflicting arguments and information that must
be considered in reaching them.
Reasons ensure transparency in decision-making. Public confidence
in the integrity of government is unlikely to exist where mystery and
suspicion surround the decision-making process.
Reasons strengthen consistency in decision-making. Similar decisions
can be compared, and contrasting decisions distinguished, when it is
known why they were made.
Reasons promote accountability in government. They enable people
to question and challenge decisions, and to do so knowledgeably
and on equal terms.
The important role that reasons play in good decision-making is
reflected in government service charters, which typically commit
agencies to provide reasons upon request. There are also legal
obligations to provide reasons. These obligations are taken seriously
by courts, tribunals, Ombudsmen and other review bodies.
The legal obligation to provide reasons
1. Statutory duties
3. Service charter commitments
Some Acts state that a person aggrieved by an
administrative decision is entitled to be given, upon
request, a statement of reasons for the decision.
This requirement is imposed by Acts that facilitate
judicial review of administrative decisions, and
review by administrative tribunals. Many Acts also
impose a duty to provide reasons in relation to specific
categories of decisions, for example, decisions to
refuse and revoke licences. In each situation the Act
will delimit the decisions that attract the obligation
to provide a statement of reasons, the time limits for
requesting and providing a statement, and its required
scope or content.
A commitment by a government agency in a service
charter to provide reasons for decisions can have legal
significance. There will be a public expectation that the
commitment will be honoured. The doctrine of natural
justice requires government agencies either to honour
their commitments and undertakings, or to explain why
they are not willing to do so.
A failure by an agency to provide a statement that
conforms to the statutory requirements can result in
an order of a review body to remedy the oversight.
Other consequences can follow too. A court or tribunal
can treat a defective statement of reasons as a reliable
indicator of a defective decision. A further option is to
treat the agency’s obligation as unfulfilled, meaning
that appeal rights which hinge on an adequate
statement of reasons being provided, do not expire
until this obligation is met.
2. Supplement to appeal rights
Legislation usually states that a person who has a
right to appeal to a court or tribunal also has a right to
be given a statement of reasons for the decision under
appeal. Even if there is no express statutory right to a
statement, there is usually an implied statutory right,
for without reasons for a decision the right to appeal
will be valueless.
4. Ombudsman review
The legislation establishing each Ombudsman in
Australia provides that a complaint can be made on the
grounds that reasons for a decision should have been,
but were not, given. The Ombudsman can recommend
that a statement of reasons either be given or be
improved. A failure by an agency to comply with an
Ombudsman’s recommendation can be taken up in
a report that is published or given to the Minister
or Parliament.
5. An axiom of prudence
A court or tribunal in reviewing a decision will be guided
initially by the explanation given by the decision-maker.
If no reasons are given, the review body might infer
that no good reasons can be offered. A reversal of the
decision is then more likely.
What a statement of
reasons should contain
The legal requirements as to the form and contents of statements of
reasons can vary. It is important to consult any relevant legislation to
see if there are special requirements. This pamphlet outlines general
principles that reflect the typical legal requirements. By following this
check-list, a decision-maker will be better placed to gauge whether a
decision was properly and validly made.
A statement of reasons can follow a standard format – in effect,
be modelled on a pro forma or shell. It must, however, be a genuine
statement of the actual reasons that were relied upon at the time the
decision was made.
1. The decision
The decision that was made should be accurately described. If it was made
under legislation, this should be referred to. If there are special conditions
attached to the decision, these should be specified. If the decision was made
to settle a problem or answer a request, this should be noted. The issue or
contention being resolved by the decision should be identified.
2. The decision-maker
The name and designation of the decision-maker should be given.
If the decision-maker was an authorised delegate, this should be stated.
It is important to check that the officer who made the decision had legal
authority to do so.
3. The process
The main steps taken in making the decision should be listed. The broad
categories of information or documents that were before the decision-maker
should be outlined. If a relevant government or agency policy was considered,
this should be explained. Other agencies or officers who were formally
consulted should also be named.
It is important to check if there were statutory procedural requirements to be
followed. If so, the steps taken to comply with those procedures should be
listed in the statement of reasons.
4. The main facts and findings
The facts on which a decision is based will sometimes be self-evident
or uncontroverted – they may, for example, be taken from a person’s
application. Other cases will be less straightforward. There may be
conflicting views as to the true facts. Or it may be necessary to draw
inferences from the facts – for example, to form an opinion about a
person’s competence, or about the viability of a proposal.
The main factual basis for a decision – whether consisting of inferences
or self-evident facts – should be set out in the statement of reasons.
Some Acts describe these as “the findings on material questions of fact”.
For each inference the evidence or information to support it should also
be set out.
The statement of facts and findings should also be checked against any
relevant legislation to ensure that no irrelevant matters were considered
and that all applicable criteria in the legislation were addressed.
5. The reasons
It is possible that only one decision could properly be reached on the facts
as found. If so, that should be explained in the statement of reasons.
In other situations there may be a choice open to the decision-maker,
that is, there is a discretion as to what decision to make. The reason for
choosing one option rather than others should be explained. To do this it
may be necessary to point to the influential matters, such as facts or policy
considerations. This will at times involve a candid statement of
unwelcome views.
Above all, a statement of reasons should fulfil its purpose of informing
a person why a decision was made. The logic of the decision should be
apparent: the reasoning that links the decision to the facts, findings and
policy considerations on which it is based should be explained. If there is
more than one step in the reasoning, or more than one element or criterion
to be addressed in making a decision, each should be covered in
the statement.
6. Appeal rights
Any avenues that are open to a person to challenge or appeal against
a decision should be listed. In particular, if the person is entitled under
legislation to seek judicial review of the decision or to appeal to an
administrative tribunal, details should briefly be given, including the time
limits for taking action. Any procedures operating within the agency to
enable internal review of decisions should also be spelt out.
Clayton Utz acknowledges the contribution of Professor John McMillan
to the Good decision-making series.
Re-stating the legal requirements
Good decision-making for government is a series of eight pamphlets on administrative law,
prepared by the Government Services Group of Clayton Utz.
A legal perspective – ten major legal themes that permeate administrative law
Natural justice – a plain English guide to handling the legal complexities of natural justice
The role of policy – a legal guide to using government policy in administrative decision-making
Authorised decision-making – the legal principles on who can make a decision in an agency
Reasons for decision – a legal guide to preparing a written statement of reasons for a decision
Duty of care – an outline of the duty of government agencies to take reasonable care
Interpreting legislation – legal principles that control the interpretation of legislation
Fact finding – legal and evidentiary principles to guide fact finding on disputed issues
The Government Services Group of Clayton Utz provides administrative law training seminars, in a half-day
or briefer format. Seminars can be tailored to meet the requirements of your agency, and to explain how
administrative law applies to your agency. The legal staff of Clayton Utz are also available to provide
administrative law advice.
Call the Government Services Group of Clayton Utz on 1800 730 069 to obtain free copies of any of the
pamphlets in the series.
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such ©Clayton Utz 2006.