RECONSIDERING OSMOND

Over thirty 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 thirty years largely unscathed. In particular, 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. 


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 However, 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.

II LEGAL UNREASONABLENESS
A

Exercising administrative discretion within the bounds of reasonableness
Importing standards of reasonableness into administrative decision-making is not a modern juridical phenomenon. As early as the 16th century, in Rooke's Case, 5 the Court of King's Bench held that the discretion of the commissioners of sewers 'ought to be limited and bound with the rule of reason and law.' Much later, in Sharp v Wakefield, 6 Lord Halsbury LC observed that a discretionary power conferred by statute is intended to be exercised 'according to the rules of reason and justice, not according to private opinion; according to law, and not humour … [and] not arbitrary, vague, and fanciful, but legal and regular.' The modern conception of this principle was most famously enunciated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation (Wednesbury). 7 In Wednesbury, with the avoidance of merits review by the Court in mind, Lord Greene MR held that what was 'unreasonable' so as to warrant the interference by the Court applied to a 'strictly limited class of case', 8 namely those concerning conclusions or outcomes 'so unreasonable that no reasonable authority could ever have come to it'. 9 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 B

The emergence of Li unreasonableness
In Li, the High Court held that a decision of the Migration Review Tribunal to refuse an adjournment under the Migration Act 1958 (Cth), in circumstances whereby an applicant sought an adjournment until the outcome of a skills assessment was finalised for the purposes of obtaining a skilled occupation visa, was invalid on the sole ground of unreasonableness. Significantly, in making this finding, the Court in Li did not merely apply the unreasonableness ground of review, but rather reformulated it. 11 As noted above, until Li, the unreasonableness ground of review in Australia was tethered to the standard of review enunciated in Wednesbury and was therefore outcome-focused in its application. 12 However, in Li, Hayne, Kiefel and Bell JJ altered this position and noted that 'Wednesbury is not the starting point for the standard of reasonableness, nor should it be considered the end point.' 13 Their Honours held that '[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification' 14 and that '[t]he legal standard of reasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision' 15 but rather that the legal standard of reasonableness was 'the standard indicated by the true construction of the statute.' 16 French CJ similarly stated that the required degree of unreasonableness involved a decision that was 'arbitrary, capricious and to abandon common sense'. 17 The Court also unequivocally held that there is a presumption of law that Parliament intends the exercise of administrative power to be reasonable. 18 In Li, 19 Gageler J explained that the ground of legal unreasonableness may be employed in two distinct contexts: Review by a court of the reasonableness of a decision made by another repository of power "is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process" but also with "whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law".
Hayne, Kiefel and Bell JJ also affirmed the principle that, even in circumstances where no reasons are provided, unreasonableness may be an inference drawn from the 'facts and from the matters falling for consideration in the exercise of the statutory power'. 20 Where there are reasons provided for a particular administrative decision, especially in cases involving the exercise of wide discretion, the Court is able to follow the reasoning process of the decision-maker and identify the divergence, or the factors, in the reasons which may be said to make a decision legally unreasonable. 21 However, in circumstances where no reasons are provided for the exercise of a power or the making of a decision, this will not be possible. In Minister for Immigration v Singh (Singh), 22 the Full Court of the Federal Court of Australia held that in cases where no reasons are provided: … all a supervising court can do is focus on the outcome of the exercise of power in the factual context presented, and assess, for itself, its justification or intelligibility bearing in mind that it is for the repository of the power, and not for the Court, to exercise the power but to do so according to law.
In Singh, 23 the Full Court also considered whether a court conducting review for legal unreasonableness is confined to the reasons of a decision-maker in cases where reasons have been provided. The Full Court noted that this was the approach taken by the High Court in Li, 24 and explained that, where reasons have been provided by a decision-maker, the supervising court should look to those reasons in order to understand why the power was exercised or why the decision was arrived at. 25 At least in cases where a discretionary power is involved, for the purposes of determining legal unreasonableness, the intelligible justification must lie within the reasons provided, as it is the administrative decision-maker in whom Parliament has conferred decision-making authority and thus, it is the explanation given by that decision-maker for that decision that should inform review by a supervising court. 26 If a court goes outside such reasons, the court might then be seen to be placing itself in the position of the decision-maker and thus acting impermissibly. 27 The Court in Li noted: … Where there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not. It would, we think, be a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen to be legally unreasonable. 28 This suggests a reluctance of the courts to conclude that a decision is unreasonable if the decision is accompanied by reasons that cross the threshold of intelligibility. 29 C Does legal unreasonableness support or infer a duty to provide reasons?
As the plurality in Li held that an administrative decision must have an intelligible justification in order to avoid attracting legal unreasonableness as a ground of review, it may be argued as a corollary of this requirement that administrative decision-makers must provide reasons in order to enable the court to ascertain the intelligibility of their decisions. 30 The question has often been posed: 'how can a court sensibly insist that decision-makers have rational reasons for their decisions, but not that they disclose what their reasons are?' 31 In Minister for Immigration v SZMDS ('SZMDS'), 32 Gummow ACJ and Kiefel J recognised the issues associated with determining the legality of administrative decisions based on notions of reasonableness, rationality or logicality in circumstances where no reasons have been provided, noting that in such circumstances a court is faced with 'a process of divination'. In response to the suggestion that reasons ought to be required in order to determine whether a decision is unreasonable or involves irrationality, it may be argued that this cannot be the case in light of the reality that Australian courts are willing to determine questions of legal unreasonableness solely based on the outcome of decisions and in circumstances where no reasons have been furnished. This continues to be the case even after the seemingly forceful obiter remarks of Gummow ACJ and Kiefel J in SZMDS. 34 As noted above, while focusing on the outcome of a decision is associated with the outdated Wednesbury approach that has since been reformulated in Li, a majority of the High Court in Li maintained that unreasonableness may be determined from the reasons for a decision (where reasons have been provided) but may also be an inference drawn from the 'facts and from the matters falling for consideration in the exercise of the statutory power'. 35 Despite this, in order to determine whether a decision has an intelligible justification, the High Court in Li and the Full Court of the Federal Court in Singh have indicated a preference for examining the reasons of a decision rather than its outcome in cases where reasons have been provided. 36 As noted above, this was said by the Full Court in Singh to be due to the fact that Parliament has conferred decision-making authority on the decision-maker and thus, it is the explanation given by that decision-maker that should inform review by a supervising court. 37 This preference for analysing the reasons of a decision rather than its outcome (where both options are available) may indicate a judicial reluctance to utilise the orthodox outcome-focused approach to determine questions of legal unreasonableness, where it can be avoided, so as to preserve the distinction between the legality and the merits of a decision, derived from the separation of judicial power under the Constitution. 38 As judicial review is concerned with the legality rather than the merits of administrative decisions, 39 a focus on whether a decision-maker's reasons are intelligible cleaves more closely to questions of legality than a direct assessment of the reasonableness (or persuasiveness) of the decision itself. 40 It may therefore appear from the reasoning in Li and Singh that the courts have recognised the problematic nature of an outcome-based approach to legal unreasonableness, its inability to fit neatly into the Australian judicial review framework and have indicated a preference or movement towards analysing the reasons of decision-makers when discerning a decision's intelligibility. However, a closer inspection of one particular aspect of the High Court's reformulation of the unreasonableness ground of review enunciated in Li stands squarely against that proposition. As has been noted above, the Court in Li departed from the stringent and confined standard enunciated in Wednesbury that a decision must be 'so unreasonable that no reasonable decision-maker could have so exercised the power' 41 in favour of a contextual legal standard 'indicated by the true construction of the statute.' 42 McDonald rightly queries whether 'a variable, context-dependent standard [can] be accommodated within a conceptual framework of review supposedly set up by the separation of judicial power from the executive function of administration' 43 and notes that '[w]ithout something like Wednesbury as a default standard of review, it becomes more difficult to maintain that the substantive nature of unreasonableness review is a strictly limited exception that does not call into question the integrity of the legality-merits distinction.' 44 If the Court in Li was in fact indicating a preference for, or a movement towards, analysing the reasons rather than the outcomes of decisions in order to discern legal unreasonableness in a manner which is consistent with the constitutional framework for judicial review in Australia, reformulating the outcome-focused test for legal 34 Ibid. unreasonableness in this manner would be a strange measure to take. Not only did the Court in Li reinforce that it is permissible for courts to consider the outcome of administrative decisions in cases where reasons are not provided, but the Court expanded this approach in a manner that is likely to cause more hostility to the meritslegality distinction than the more stringent former standard. On this revised approach, in circumstances where no reasons are present, it seems that the boundary between a legitimate form of judicial intervention through legal unreasonableness and a more direct substitution of opinion by members of the judiciary will become even more blurred. 45 In light of this reality, any argument that legal unreasonableness is concerned primarily with the reasons for a decision rather than its outcome or persuasiveness, due to its neater fit with the merits-legality distinction of judicial review in Australia, becomes difficult to maintain. It is even more difficult to maintain that this judicial concern with reasons may give rise to a duty in administrative decision-makers to provide reasons for their decisions. However, one must query whether the current outcome-based approach to legal unreasonableness will be sustainable in the long term in light of its problematic position within the Australian judicial review framework. This may provide an incentive for the High Court to base the legal unreasonableness ground of review purely on the intelligibility of a decision-maker's reasons rather than the outcome or persuasiveness of a particular decision. If the ground of legal unreasonableness is reconfigured in this respect, the provision of reasons may be rendered a common law requirement in administrative decision-making. However, as evolved, the principles of legal unreasonableness do not require reasons to be provided as a corollary of the requirement that administrative decisions must have intelligible justifications.

III NATURAL JUSTICE
Natural justice is concerned with ensuring fairness in the decision-making process. 46 The core requirements of natural justice can be separated into two distinct rules of the common law, 47 namely the hearing rule and the bias rule, which respectively require 'the according of an appropriate opportunity of being heard' 48 and 'the absence of the actuality or the appearance of disqualifying bias'. 49 For the purposes of this paper, only the content of the hearing rule will be examined.
In TCL, 50 the Full Court of the Federal Court of Australia held that '[t]he essence of natural justice is fairness -it is its root as a legal conception and it lies at the heart of its operation.' As natural justice concerns 'what a decision-maker must do in the course of deciding how the particular power given to the decision-maker is to be exercised', 51 a reviewing court seeking to preserve the principles of natural justice will be interested in the fairness of the procedure adopted by a decision-maker rather than the fairness of the decision or outcome created by that procedure. 52 It is difficult to detail the content of the rules of natural justice with any degree of precision as the requirements of fairness cannot be determined by reference to a 'fixed body of rules' 53 but rather must be 45 Ibid. determined by the particular statutory framework and factual circumstances of each case. 54 In Lloyd v McMahon, 55 Lord Bridge observed: … the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body … has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates. … [T]he courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness.
While the principles of natural justice are concerned with the preservation of fairness, it must be borne in mind that these principles are solely interested in preserving fairness in a practical sense, rather than in an abstract or theoretical sense. In TCL, 56 the Full Court held that unless there is 'true practical injustice, there can be no breach of any rule of natural justice.' Similarly, in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam ('Lam'), 57 Gleeson CJ explained that '[f]airness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.' It has therefore been made clear that the principles of natural justice will only be attracted if an aggrieved party can demonstrate injustice in a practical sense.
Although it will not be possible to lay down a universal test by which one can ascertain whether the requirements of fairness have been met, 58 in relation to the specific content of the hearing rule, in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd, 59 the Full Court of the Federal Court held that there will generally be three minimum requirements where the rules of natural justice apply: Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.
These principles will be enlivened in 'the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.' 60 The willingness of the High Court to take a broad approach to the interpretation of 'interests' in particular indicates that a wide range of privileges and benefits controlled or generated by public officials will attract the requirements of natural justice. 61 A Could the principles of natural justice require the giving of reasons?
In Osmond, 62 Gibbs CJ (and a majority of the High Court) doubted whether natural justice could require the giving of reasons in administrative decision-making. His Honour held that '[t]he rules of natural justice are designed to ensure fairness in the making of a decision and it is difficult to see how the fairness of an administrative decision can be affected by what is done after the decision has been made.' 63 In Canwest Global Communications Corporation v Treasurer, 64 Hill J similarly queried 'how … can it be said that the failure to give reasons affects the logically anterior decision-making process?' Notwithstanding arguments of this kind, there remains a strong case to be made that the giving of reasons is required by the principles of natural justice. 65 B

The giving of reasons as part of the decision-making process
Rather than acceding to the view that the provision of reasons for a decision follows, and is distinct from, the making of a decision, it has been suggested that 'the provision of reasons is better viewed as a part of the decisionmaking process itself.' 66 For instance, Cremean claims that: … surely, the giving of reasons is part of the decision itself -and does not logically occur afterwards. It would be irregular in our system if decisions were made and reasons were then found for them. In other words, giving reasons is part of the decision-making process. 67 However, such arguments conflate two conceptually and practically distinct notions, namely the formulation of reasons and the provision or publication of reasons. In attempting to rebut the idea that the fairness of a process cannot be 'impugned or satisfied by providing reasons after that process ended', 68 arguments of the kind made by Cremean overlook the fact that the difficulties expressed by Gibbs CJ in Osmond doubt how the provision or publication of reasons can impact the decision-making process after the reasoning process is concluded and a decision is made.
In lengthy or complex modern decision-making, it may be difficult to ascertain the distinction between notice of relevant matters to a potentially aggrieved party, the formulation of reasons for a decision and the provision or publication of those reasons. 69 This may especially be the case where a decision-making process involves the provision of notice to potentially aggrieved parties with relevant facts, evidence and/or proposed decisions. 70 However, the fundamental distinction between these concepts remains apparent as the provision of reasons 'logically and temporally succeeds the making of a decision'. 71 If this is accepted, it is difficult to maintain that the giving of reasons is part of the decision-making process itself.

C
The provision of reasons as a means of ensuring practical fairness While the giving of reasons logically and temporally follows the decision-making process, the fairness of a decision-making process may nevertheless be effected by the provision of reasons after a decision has been made if an aggrieved party is unable to determine, in the absence of reasons, whether the principles of natural justice have been adhered to in the making of the decision. 72 After all, it is only through the provision of reasons that one is able to ascertain whether, in the making of the decision, the arguments advanced in the course of the opportunity to be heard were taken into account or not. 73

TRS Allan states:
A principal purpose of the rules of natural justice, more generally, is to enable a person to identify with the decisionmaking process: by observing them we make it easier for him to accept the result, and "make it manifest to anyone disappointed at the outcome that we were solicitous of his interests and did not reach an adverse decision lightly or wantonly, but only for good reason and with evident reluctance". 74 In the absence of a statement of reasons being provided, a decision-maker cannot enable a person to identify with the decision-making process and cannot make it manifest that they were solicitous of an aggrieved party's interests.
In a natural justice context, the courts often refer to practical considerations, especially in determining whether an opportunity was lost to influence a decision being made. 75 However, more broadly construed, if practical fairness and the avoidance of practical injustice are truly at the core of natural justice as a legal conception and lie at the heart of its operation, 76 it is anomalous to suggest that a potentially aggrieved party has a right to hear the case against them and make submissions in response to that case, but then not to allow that party to know, by way of a statement of reasons, whether their submissions were taken into account when the decision is made. If the principles of natural justice cease to operate on the decision-maker once a decision has been finally arrived at, the practical impact of the principles of natural justice will be cut short. In R v Civil Service Appeal Board; Ex Parte Cunningham, 77 McCowan LJ of the England and Wales Court of Appeal expressed this concern as follows: [t]o accord with natural justice a tribunal must permit a party to state his case. But how will that avail him if he has no idea whether any attention has been paid by the tribunal to what he said? … [I]t cries out for some explanation from the board. As I would put it, not only is justice not seen to have been done but there is no way, in the absence of reasons from the board, in which it can be judged whether in fact it has been done.
If natural justice is really a matter of practical justice and practical fairness, then the principles of natural justice may allow one impacted by a decision to determine whether their submissions were taken into account in practice. The only way that this can be ensured is through requiring decision-makers to provide reasons for their decisions that indicate to an aggrieved party why a decision was decided in a particular manner and how contentious matters of law or fact were resolved. 78 Of course, a duty to provide reasons based on the principles of natural justice would only apply where the principles of natural justice operate and would be contextual in nature so as to require from a statement of reasons only so much as is necessary in the circumstances to ensure the attainment of justice and fairness in a practical sense. To maintain otherwise may relegate the principles of natural justice to a level of abstraction that is anomalous to its pragmatic nature and its very essence as a legal conception.

IV CONCLUSION
In the event that the matter comes before the High Court for reconsideration in the near future, significant developments made in Australian administrative law since Osmond was decided are likely to cause major difficulties to a rule that has remarkably survived the past thirty years largely unscathed. While it is doubtful that Li unreasonableness, as currently evolved, would give rise to a common law duty requiring administrative decision-makers to provide reasons for their decisions, the principles of natural justice and their concern with practical conceptions of fairness provide fertile ground upon which at least a partial duty to provides reasons may flourish.