Australia: Duty To Give Reasons For Administrative Decisions

The English Court of Appeal decision in R (on the application of Hasan) v Secretary of State for Trade and Industry [2008] EWCA Civ 1311 reiterated that public authorities in the United Kingdom are not yet bound by a general common law duty to publish reasons for administrative decisions. The Court was of the view that the statutory framework under the UK Freedom of Information Act 2000 (the FOI Act) sets out clear parameters for the disclosure of information, and therefore, the law should not go further.

Background

In April 2005, Israeli forces destroyed the appellant's olive and almond trees and appropriated his land. The appellant sought judicial review of the licences granted by the British Secretary of State under the Export Control Act 2002 (UK) for the export of military equipment to Israel. It was contended that there was a real risk that the licensed articles would be used against Palestinians for internal repression which was contrary to the Consolidated Criteria of 26 October 2000. It was also contended that there was a general public duty at common law to publish reasons in the public domain where it is required for the purposes of public interest, and for the sake of transparency, public confidence, accountability and proportionality.

Judgment

The Court of Appeal held that Collins J of the High Court of Justice in the Queen's Bench Division was correct in determining that the claim must fail. The Court agreed with the respondent's submission that a purported duty of uncontained width and imprecision would be a massive and unwarranted leap for the Court to make, particularly since it could result in subjective decisions being made by individual judges.

Further, the Court stated that the FOI Act is Parliament's considered statutory framework for the disclosure of information which does not leave scope for ancillary judicial determinations on the matter. The fact that the appellant failed before the Information Commissioner consolidated the Court's view that the appellant should not be allowed to succeed by other means. The Court also noted that, since the subject matter was of a sensitive nature, any unguarded publication was likely to be damaging.

Implications

This case confirms that, in the UK, administrative decision-makers are currently not bound by a common law duty to disclose reasons for their decisions. The judgment makes it clear that the existence of a freedom of information regime will generally prevail against the parallel existence of a common law duty. It also demonstrates that the formulation of a duty characterised by an unpredictable lack of principle and of uncontained scope will not make for a compelling argument in court. Nevertheless, the Court affirmed that the question of whether decision-makers should give reasons for administrative decisions remains open for further consideration if the appropriate circumstances arise.

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