Last updated 20 May 2022
If a person wishes to challenge a decision in the courts, it is of vital importance that the reasons for the decision are known. In many cases, a statement of reasons will accompany notification of a decision. A statement of reasons should explain the reasons for the decision and options for review.
The Administrative Decisions (Judicial Review) Act 1977 (Cth) (Administrative Decisions Act) first introduced a statutory requirement to provide a statement of reasons that has since been adopted in Queensland under the Judicial Review Act 1991 (Qld).
Obtaining reasons under the Judicial Review Act
A statement of reasons can only be sought where the applicant has grounds for a statutory order of review under pt 3 of the Judicial Review Act.
Part 4 of the Judicial Review Act provides a right to seek reasons that is independent of the right to seek judicial review. This means that it is possible to seek a statement of reasons under the Judicial Review Act, before judicial review proceedings have been commenced, and seeking reasons does not necessarily mean that any further action will follow. It is a stand-alone right.
The right to obtain a statement of reasons does not extend to an application for review under pt 5 of the Judicial Review Act.
Requesting the statement of reasons
A request for a written statement of reasons must be made:
- in writing
- about a decision that is reviewable under the Judicial Review Act
- by the person who is entitled to seek judicial review under pt 3 of the Act (ss 31–33 Judicial Review Act).
The decision maker must provide the statement of reasons within 28 days of the request (s 33 Judicial Review Act).
If the statement of reasons is not supplied within 28 days of the request, the requestor can apply to the Supreme Court for an order (s 38 Judicial Review Act). If the court considers that the requestor is entitled to make the request, they may order that the decision maker provide the statement of reasons within a specified period.
It is also possible to request an additional statement of reasons, where the court agrees that the ones given were inadequate (s 40 Judicial Review Act).
Content of the statement of reasons
The statement must contain:
- findings on material questions of fact
- the evidence and other material on which the findings were based
- reasons for the decision (ss 35, 3 Judicial Review Act, s 27B Acts Interpretation Act 1954 (Qld)).
Refusal to provide statement of reasons
The decision maker may refuse to supply reasons on certain grounds. This includes if they believe that the person making the request has no entitlement to request reasons, in which case the decision maker can either give written notice of their opinion or apply to the Supreme Court for an order declaring the requestor is not entitled to make the request (s 33(2) Judicial Review Act).
Schedule 2 to the Judicial Review Act lists decisions for which a statement of reasons need not be given. Many of these decisions relate to the administration of civil and criminal justice (e.g. many decisions of the Crime and Corruption Commission), the commercial activities of designated state authorities, appointment decisions in government and financial matters (e.g. government tenders and contracts). These are to be interpreted broadly as a ‘class of decisions’ rather than narrowly. Similar exclusions exist under the Commonwealth Administrative Decisions Act.
Finally, the decision maker may refuse to give a statement of reasons where the requester has not applied within 28 days of being given the decision or, where no decision was given, within a reasonable time after the decision is made (s 33(4) Judicial Review Act). The decision maker must give written notice of the refusal within 14 days of the request (s 33(5) Judicial Review Act).
Limitations to the information disclosed
There are some limitations on the information that can be disclosed where a person makes a request for written reasons (i.e. notably confidential business or personal information (s 35 Judicial Review Act) and disclosure of information the Attorney General certifies would be contrary to the public interest, such as Cabinet deliberations or for any other reason (s 36 Judicial Review Act) are excluded).
Where a person has requested a statement of reasons, and the consequence of redacting information in accordance with ss 35 and 36 of the Judicial Review Act would render the statement false and misleading, the decision maker may provide a statement that does not include this information or refuse to provide a statement of reasons (s 37 Judicial Review Act). The decision maker must give a written statement for why the information is not included or why the statement of reasons has not been given within 28 days (s 37 Judicial Review Act).
Common law and other avenues for obtaining reasons
There is no common-law right to be informed of the reasons for an administrative decision.
Where reasons for the decision are not obtainable under the Judicial Review Act (or equivalent Administrative Decisions Act provisions) it may be possible to obtain reasons for the decision through access-to-information laws. See the other Complaints against Government chapters and the Right to Information and Freedom of Information chapter for further information on the relevant state and Commonwealth schemes.
Once legal proceedings have begun, a procedure known as disclosure is available to both parties. Disclosure is the procedure by which relevant documents in the possession of one party must be disclosed or provided to the other party. In this way, any written reasons for a decision that exist may be obtained as part of the ordinary rules of civil proceedings. The government may, however, refuse to produce documents on a number of grounds, including Crown privilege, which is a claim that the public interest would be harmed if the documents were revealed.