This page considers the circumstances in which an administrative decision has been made, but reasons for the decision have not been provided. In certain circumstances, there is a right to request the reasons behind the decision.
Under s 8(1) of the Administrative Law Act 1978 (Vic) (ALA), a tribunal shall, if requested to do so by any person affected by a decision made or to be made by it, provide the person affected with a statement of its reasons for the decision.
Note that there is no common law right to reasons in administrative decision-making: Public Service Board (NSW) v Osmond (1986) 159 CLR 656.
Under the ALA, a ‘decision’ is a decision operating in law to determine a question affecting the rights of any person or to grant, deny, terminate, suspend or alter a privilege or licence. The definition of ‘decision’ includes a refusal or failure to perform a duty, or to exercise a power to make such a decision: ALA s 2.
For example, a decision by the Director of Housing to issue a notice to vacate in relation to a public housing property likely constitutes a ‘decision’ for the purposes of s 2 ALA. In Burgess v Director of Housing [2014] VSC 648 (Burgess), Macaulay J held at [157]:
‘In my view, a decision to issue a notice to vacate sufficiently exposes the tenant to the risk of losing the tenancy to be rightly regarded as one that affects a person’s rights and interests. The starting proposition, therefore, is that the rules of natural justice must be observed in making it.’
(see also at [117], [124])
A decision by the Director of Housing to purchase a warrant for possession is also a decision for the purposes of s 2: see Burgess at [15], [117], [124], [134], [142].
Note that Burgess was a case brought using the common law writ of certiorari rather than under the ALA, but similar principles would likely apply.
See also Mason CJ’s comments in Australian Broadcasting Tribunal v Bond [1990] HCA 33 that ‘the fact that the Administrative Decisions (Judicial Review) Act 1977 (Cth) is a remedial statute providing for a review of administrative action rather than some form of appeal from final decisions disposing of issues between parties indicates that no narrow view should be taken of the word “decision”’: at [29]. This comment would seem to apply equally to a decision under the ALA.
However, following the recent case of ARF (a pseudonym) v Director of Housing [2021] VSC 199 (ARF), the current state of the law in relation to seeking written reasons or judicial review of the decision to issue a notice to vacate is uncertain. In ARF, Derham AsJ found the decision by the Director of Housing to commence eviction proceedings in VCAT in relation to a public housing property was not a ‘decision’ for the purposes of the ALA. Critically, his Honour noted the Director of Housing did not have any power to make such a decision that operates in law to determine a question affecting the rights of any person, as this power resides exclusively with VCAT.
As the current legislation also gives VCAT significant discretion to make or refuse a possession order, the Director of Housing may argue that this limits the ability to seek written reasons or judicial review of the Director of Housing’s decision to issue a notice to vacate or apply to VCAT for a possession order. However, we understand that ARF may be subject to an appeal and therefore the law remains uncertain.
Only a ‘person affected’ by a decision can request reasons under s 8(1) ALA.
A ‘person affected’ is defined as someone whose interest may be affected, directly or indirectly, and to a substantial degree, by a decision which has been made or is to be made or ought to have been made by the tribunal: ALA s 2.
The person’s interest must be greater than the interest of other members of the public, however, the person does not have to be a party to proceedings.
It seems apparent that a person whose housing is affected by a decision of the Director of Housing would fall within this definition.
Only decisions made by tribunals give rise to a right to request reasons: see ALA s 8.
A tribunal is a person, or body of persons, who in arriving at the decision in question, is or are by law required, whether by express direction or not, to act in a judicial manner to the extent of observing one or more of the rules of natural justice: ALA s 2.
Administrative decision makers are required at common law to afford procedural fairness (used interchangeably with the phrase ‘natural justice’) when making decisions that affect the legitimate interests of a person unless a statute very carefully and clearly extinguishes that obligation: see Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326. It is difficult for legislation to exclude procedural fairness without an express provision that that effect, as the High Court has stated that procedural fairness is protected by the principle of legality: Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252.
Note that a particular decision-maker may be obliged to follow the rules of natural justice in making some decisions but not others, and therefore may only constitute a ‘tribunal’ in certain circumstances.
Practice Tip
The rules of procedural fairness broadly consist of:
Courts are willing to regard various bodies as owing a duty of procedural fairness. For example, a medical panel tasked with answering medical questions about a person’s capacity to work is bound to observe the rules of natural justice in favour of those whose rights are liable to be affected by its opinion: Sherlock v Lloyd & Ors [2008] VSC 450 at [13].
The Director of Housing likely constitutes a ‘tribunal’ when issuing a notice to vacate as it is required to apply the rules of natural justice in making that decision: see Burgess at [157]-[160]. It was not necessary for Macauley J in Burgess to decide whether the Director of Housing was also obliged to afford natural justice when deciding to purchase a warrant: at [224]-[231].
Note that the Tenancy Breaches Operational Guidelines of the Department of Families, Fairness and Housing (Department) (formerly the Department of Health and Human Services) provide:
“Natural justice (also known as procedural fairness) requires all department staff to act fairly when making decisions that impact the tenant’s rights or interests under the Residential Tenancies Act (1997)”
It is unclear whether non-government community housing providers are obliged to provide natural justice to community housing tenants under administrative law principles, and therefore can constitute a ‘tribunal’ for the purposes of s 2 ALA.
In Monash University v Berg [1983] VicSC 41 (25 February 1983), O’Bryan J held that: ‘I would confine the operation of the [ALA] to public or semi-public tribunals and authorities exercising statutory power’. However, in Dominik v Eutrope [1984] VicRP 54, Nathan J held that
‘The class of what is a public or semi-public tribunal must be considered organic, capable of growth, and not capable of close definition. The terms of the Administrative Law Act 1978 are broad enough to encompass a large number of tribunals which have been established or might be established by way of statutory aegis’.
In Unison Housing v Durney [2019] VSC 6 at [54]- [66] Garde J held that a community housing provider’s decision to issue a notice to vacate was not amenable to judicial review under common law principles. However, this does not necessarily determine the question of whether community housing providers are tribunals for the purposes of the ALA.
This question, and the related question of whether community housing providers are functional public authorities for the purpose of the Charter (see Negotiating using the Charter), may be the subject of future determination by the courts.
The following entities are not obliged to give reasons under the ALA (see ss 2 and 8(6)):
A request for reasons may be made orally or in writing and must be made to the tribunal or a member of the tribunal in question. It is advisable to write a formal letter to all members of the tribunal when making this request: see s 8(2) ALA.
A request for reasons can be made before the decision is given but must be made (s 8(2) ALA):
The statement of reasons must in writing and be provided within a reasonable time (s 8(3) ALA).
Note: A decision furnished by the tribunal will form part of the record: ALA s 10. Therefore, if a statement of reasons discloses an error of law that is not a jurisdictional error, the error can be a ground for review of the decision on the basis of error of law on the face of the record.
A request for reasons should not be made where reasons have already been substantively given, and the party should instead seek judicial review of the decision itself under s 3 ALA or under the common law.
For example, in Summers v Director of Housing [2013] VSC 233, Mr Summers sought, amongst other things, an order under s 8(4) of the ALA, compelling the Medical Tribunal to furnish a statement or a further statement of reasons. The Court held that this was ‘unreal or spurious because reasons had truly been given beforehand’. In this situation, the more appropriate course of action was to seek to have the decision reviewed under s 3 of the ALA.
If a reasonable time has elapsed after the request for reasons has been made, the person affected may apply to the Supreme Court to make an order that the tribunal furnish their reasons within a time specified by the order: ALA s 8(4).
The Supreme Court can also provide interim relief by making an order to postpone or suspend the operation of a decision made by a tribunal if reasons have not been furnished: see ALA s 9. The order can only be made to prevent irreparable damage pending judicial review of the decision. The court can make an order to restrain the operation of the decision until 14 days after the reasons have been furnished, or such further time as the Court deems fit.
The tribunal does not have to provide its reasons if, in the opinion of the Court, it would be against public policy to do so: s 8(5).
The tribunal also is not bound to furnish its reasons if the person making the request is not primarily concerned with the decision and the Court believes that providing reasons for the decision would be against the interests of a person who is primarily concerned with the decision: ALA s 8(5).
If reasons are provided in a reasonable time, but they are not adequate, again the Supreme Court has the power to order the tribunal to furnish a further statement of its reasons: ALA s 8(4). If the order is not complied with, the Supreme Court may then make an order forcing the tribunal to comply, as well as an order that they may have made if an error of law had appeared on the face of the record.
Homeless Law in Practice provides resources and tools for Victorian lawyers and advocates. If you’re looking for help, visit Justice Connect.