Commentaries
| Author | D Volker |
| Published date | 01 June 1983 |
| Date | 01 June 1983 |
| DOI | http://doi.org/10.1177/0067205X8301400204 |
| Subject Matter | Article |
COMMENTARIES
Mr D
VOLKER*
The
availability
of
reasons for decisions
is
an important part
of
recent
developments in Commonwealth administration. As Mrs Burnett's scholarly
analysis shows, these developments have
not
been without their uncertainties.
I would like to pursue a
few
of
the issues raised in her paper
and
mention some
issues associated with providing reasons for decisions in the Repatriation area.
There
is
much to be said for a person affected by a decision having a right to
obtain full written reasons for the decision.
This
enables the person affected to
find
out
why the particular decision has been made.
It
may also provide a
possible basis for challenge to the decision. As Mrs Burnett notes, the need to
give reasons has also been described as encouraging consistency
and
better
quality in decision-making.
In the field with which I am most recently familiar, Veterans' Affairs,
we
have
not
had much experience
of
the obligation to provide reasons under the
Administrative Appeals Tribunal Act 1975
(Cth)
or the Administrative
Decisions (Judicial Review) Act 1977 ( Cth). However, statutory obligations
roughly similar to those arising under those Acts apply at each
of
the three
levels
of
the Repatriation determining system in respect
of
claims for entitle-
ment to pension
or
assessment
of
the rate
of
pension payable. Thus, in the
1981-82 financial year, reasons for decisions were provided in respect
of
19,690 entitlement decisions
and
9,396 assessment decisions.
The
figures in
the current financial year will be even higher.
This
is
no mean task.
We are indebted to Mrs Burnett for her analysis
of
the way in which the
courts are examining reasons for decisions in the course
of
the judicial review
process. In respect
of
at least some
of
the decisions she has listed, judicial ac-
tivism rather than judicial restraint seems to be to the fore. Judicial review
under the Administrative Decisions (Judicial Review) Act seems to me as a non-
lawyer to be drawing close to review
on
the merits.
This
is
not surprising since
I recall that Professor Whitmore said at the
1981
administrative law seminar at
this University that,
"it
would be a very unimaginative judge who could
not
review an administrative decision
on
the
merits"
1 under the Act.
The
comments
of
Lockhart J in
Toy
Centre Agencies Pty
Ltd
v Spencer, 2
which are referred to by Mrs Burnett, seem to strike a sensible compromise
between the need to ensure that decisions are taken properly, fairly
and
other-
wise in accordance with law
and
the demands
of
practical administration. As
Lockhart J pointed out:
the
Court
must
not
require perfection from decision makers
or
impose such
onerous duties upon them as to cause them to be afraid to make decisions, lest
they be challenged on trivial grounds,
or
to pre-occupy them with
minutiae.
3
Similar sorts
of
judicial comments have been made when reviewing
Repatriation decisions. However, my impression from reading Mrs Burnett's
•
BA
(Qid); Secretary to the Department
of
Veterans' Affairs, Canberra.
1 H Whitmore. "Commentary" (1981)
12
FLR
117,
118.
'(1983)
5
ALD
121.
3 Supra n
2.
128.
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