Reasons

The value of giving reasons includes their contribution to the transparency of decision-making and to the correctness and lawfulness of decisions: ‗It has long been recognised that the giving of reasons by a tribunal for its decisions is a desirable course of action.‘ 665

There are further imperatives in university hearings: they are generally held in closed session and, as a rule, there is no recourse to external merits review where the giving of reasons would be standard.

Providing reasons has been a legislated requirement of a wide range of Australian statutory decision-making since the 1970s.666 At common law, it has been pointed out that the judicial stance on the duty to give reasons contains a significant tension, notably in the difference between the general and particular approaches to the duty:

Now while the courts continue to restate the absence of a general duty to give reasons, they are sounding more and more like Mark Antony at Caeser‘s funeral: saying one thing and meaning another.667

There is no general rule at common law that fairness requires the giving of reasons. This was emphatically stated by the High Court in Public Service Board of NSW v Osmond.668 ‗Exceptions‘ to the general rule would appear to be sufficiently prolific, as circumstances and fairness dictate, that

the general proposition is meaningful only in indicating that the mere fact that a decision-making process is held to be subject to the requirement of fairness does not automatically or naturally lead to the further conclusion that reasons must be given. However it is certainly now the case that a decision-maker subject to the requirements of fairness should consider carefully whether, in the particular circumstances of the case, reasons should be given.669

While this may be the position in relation to decision-making by statutory bodies,670 for domestic tribunals the dictum in Public Service Board of NSW v Osmond more readily

665

Geoffrey Flick ‗Administrative Adjudications and the Duty to Give Reasons – A Search for Criteria‘ (1978) 1 Public Law 2 16, 17-18; R v Higher Education Funding Council; ex parte Institute of Dental Surgery [1994] 1 WLR 242, 256-7.

666

Eg Administrative Decision (Judicial Review) Act 1977 (Cth), s 13; Administrative Law Act 1978

(Vic), s 8.

667 _{Galligan Due Process and Fair Procedures, 435.} 668 _{(1986) 159 CLR 656.}

669

De Smith, Woolf And Jowell Judicial Review Of Administrative Action , [9-041].

670_{R v Civil Service Appeal Board; ex parte Cunningham (1991) 4 All ER 310, 318: ‗I do not accept that,}

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applies.671 Absence of a general duty to give reasons for university decisions is supported by the judgement in Wing Kew Leung v Imperial College of Science, Technology and Medicine.672

In respect of circumstances where the duty may apply, Sedley J, in R v Higher Education Funding Council; ex parte Institute of Dental Surgery,673 posed a threshold as to the duty to give reasons. While no general duty lies, at least two classes of case exist where a duty would exist: where fundamental interests are affected (he gives the example of personal freedom), and where the decision prima facie ‗appears aberrant.‘674 In student discipline cases the latter test is more likely to be triggered.675 A similar approach may be found in Jackson v Director-General of Corrective Services.676

A statutory obligation lies on universities in several Australian jurisdictions to provide reasons for decisions when requested by an affected person. Even so, there may be no requirement in the relevant discipline rules for a university decision-maker to provide reasons. In Victoria, for instance, in spite of the Administrative Law Act 1978 (Vic), s 8, three out of four surveyed institutions do not require decision-makers to supply reasons. On the other hand, the Queensland universities677 and ANU, subject to similar statutory requirements678 but where justiciability may be in question, 679 do require reasons to be given.

Just over half of the surveyed institutions (10 of 16) do not require decision-makers to provide reasons for their decisions. This division perhaps reflects tension in the law regarding this duty as an administrative standard, and apprehension in application of this standard in a disciplinary context. At common law reasons are not required for fairness. The stance of many universities is

decisions, it follows that the common law is unable to impose a similar requirement upon other tribunals.‘ The Board in this case was, additionally, acting in a judicial capacity.

671

Dixon v Australian Society of Accountants (1989) 18 ALD 102; compare the well-known dissenting opinion of Lord Denning MR in Breen v Amalgamated Engineering Union (1971) 2 QB 175, 190-191: ‗Then comes the problem: ought such a body, statutory or domestic, to give reasons or to give the person concerned a chance of being heard? Not always, but sometimes. It all depends on what is fair in the circumstances… The giving of reasons is one of the fundamentals of good administration.‘

672 _{[2002] EWHC Admin 1358, [37]. This position was common ground between the parties. The issue}

lay in the adequacy and consistency of reasons, especially supplementary reasons, which the College had provided in any case.

673

[1994] 1 WLR 242.

674_{R v Higher Education Funding Council; ex parte Institute of Dental Surgery [1994] 1 WLR 242, 263} 675 _{Eg, where there is an arguable case of irrationality or disproportion in the decision.}

676 _{(1990) 21 ALD 261, 264: ‗If an authority is not bound to state reasons for a decision but chooses to do}

so a court may act on them if they demonstrate an erroneous approach to an exercise of power… equally so when the reasons appear directly or by clear inference from other proved facts and circumstances.‘

(emphasis added)

677

Other than the University of Queensland, which appears to be in the unusual position of not requiring reasons as part of the decision – although an appeal committee is required to keep a record of the proceedings including how it conducted the inquiry (s 16(2)) – but must ‗record and publish details of findings of misconduct according to a scheme approved by the senate.‘(s 24).

678

Judicial Review Act 1991 (Q), s 32; Administrative Decisions( Judicial Review) Act 1977 (Cth), s 13.

679 _{Despite the fact that, where the rules are not in a statutory instrument, the review legislation would not}

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consistent with this prevailing standard. A number of institutions appear in excess of the standard. However, that may be for the value that the practice of formulating reasons brings to the decision-making process.