“How has the law regarding the common law right to reasons for decision differed between Australia and the UK in light of Osmond? Have things changed in light of more recent developments? To what extent should the principles of common law judicial review regarding the right to reasons for decision adapt themselves to the principles of accountability?”
Public Service Board v Osmond
A general rule requiring reasons for decisions has been on the common law agenda since recommended in the UK by the Franks Committee in 1957, which argued that it is a necessary law for facilitating open government. The ADJR act brought a right to reasons to many administrative decisions but the powers not covered by the limited (and decreasing) scope of the ADJR left a gap in Australian law that many hoped the common law would fill.
BENEFITS TO REASONS
In the New South Wales Court of Appeal Kirby J created a general rule of the common law of a right to reasons for decisions in Osmond. This was emphatically reversed in the High Court, to the surprise of many commentators. Chief Justice Gibbs ruled that no general right to reasons existed, his arguments based heavily on the decisions of English courts.
Right to reasons for decision in English law
At the time of Osmond the law on right to reasons in Australia and England was very similar. In England it was recognised that there was no general right to reasons in cases which Gibbs J discussed. However while these cases confirmed that there was no general right to reasons they were each offering indirect routes to obtain reasons for decisions. In the UK over the decade following Osmond these cases were not viewed as limiting a right to reasons but the beginning of a trend towards a right to reasons.
Rather than indirectly requiring a right to reasons, a series of cases in the early nineties directly linked a right to reasons with procedural fairness, which some UK judges prefer to speak of as a duty to ‘act fairly’, a broader term not tied to the rules of natural justice. XXThese decisions may have formed two classes of cases where reasons were required, cases where the decision was abberant or unusual and cases where the subject matter of the decision is consequential or important in law.
Following these cases has been Murray in which Lord Chief Justice Bingham ruled that reasons should be given in the interests of fairness when a body had the power to affect individuals, criteria that should be wide enough to allow any court to require reasons for decisions if it wishes. Two years later the Privy Council ruled that the General Medical Council required reasons to suspend a medical practitioner despite no statutory requirement to do so. In the judgment Lord Clyde stated, “what were once seen as exceptions to a rule may now be becoming examples of the norm”.
Post Osmond developments in Australian administrative law
The law regarding a right to reasons in England has differed noticeably from Australian law over the last twenty years, however other substantial developments have been chipping aways at the scope and legitimacy of Osmond as well.
In Campbelltown the NSWCA distinguished Osmond on the grounds that it only applied to administrative decision making. This is a valid point considering the specific references to administrative decision making in Osmond however it may also demonstrate a move to limit the application of Osmond.
This notion is futher evidenced by Practise Note 119 issued by Spigelman CJ for the NSW Supreme Court which states that a Judge may direct a decision maker to provide reasons for decision at a directions hearing. There is no mention of a statutory right to reasons. Spigelman also notes moves towards a common law source of judicial review positively. While Spigelmen doesn’t claim that a duty to...
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