Abstract

Over 30 years has now passed since the High Court of Australia held in Public Service Board (NSW) v Osmond that the common law imposes no obligation on administrative decision-makers to provide reasons for their decisions. Despite this, significant developments made in Australian administrative law since Osmond was decided may in fact cause major difficulties to a rule that has survived the past 30 years largely unscathed. This paper demonstrates that although the emergence of Li unreasonableness is unlikely to give rise to a common law duty to provide reasons, the principles of natural justice provide a solid doctrinal foundation for the High Court to reconsider the position expressed in Osmond.

Highlights

  • While much judicial and scholarly ink has been spilled over the importance and desirability of reasons in Australian administrative decision-making,[1] more than 30 years have passed since the High Court of Australia held in Public Service Board (NSW) v Osmond (‘Osmond’) that the common law in Australia imposes no obligation on administrative decision-makers to provide reasons for their decisions.[2]

  • In light of these developments, ‘[i]t seems unlikely, even in the current climate of judicial caution, that the rule in Osmond could survive a direct onslaught totally unscathed.’[4]. Expanding on previous scholarly and judicial consideration, this paper examines the evolution of two common law principles that are most likely to impact the rule in Osmond in the event of a ‘direct onslaught’ before the High Court, namely legal unreasonableness and natural justice

  • The standard of review in Wednesbury marked the bounds of legal reasonableness within which Australian administrative decision-makers were required to exercise discretion until the decision of the High Court in Minister for Immigration and Citizenship v Li (Li).[10]

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Summary

INTRODUCTION

While much judicial and scholarly ink has been spilled over the importance and desirability of reasons in Australian administrative decision-making,[1] more than 30 years have passed since the High Court of Australia held in Public Service Board (NSW) v Osmond (‘Osmond’) that the common law in Australia imposes no obligation on administrative decision-makers to provide reasons for their decisions.[2] it is clear that Australian administrative law has experienced significant changes since Osmond was handed down.[3] In light of these developments, ‘[i]t seems unlikely, even in the current climate of judicial caution, that the rule in Osmond could survive a direct onslaught totally unscathed.’[4] Expanding on previous scholarly and judicial consideration, this paper examines the evolution of two common law principles that are most likely to impact the rule in Osmond in the event of a ‘direct onslaught’ before the High Court, namely legal unreasonableness and natural justice

A Exercising administrative discretion within the bounds of reasonableness
B The emergence of Li unreasonableness
C Does legal unreasonableness support or infer a duty to provide reasons?
NATURAL JUSTICE
A Could the principles of natural justice require the giving of reasons?
B The giving of reasons as part of the decision-making process
C The provision of reasons as a means of ensuring practical fairness
CONCLUSION
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