ADEQUACY OF REASONS
55 Question 2(c) in the notice of appeal asks whether the Panel had complied with the obligation imposed upon it by s 160(1)(b) of the Act. Section 160(1)(b) requires the Panel to prepare a written statement setting out the reasons for its decisions. Mr Kennedy complains that first, the Panel made a bald finding on his claim for serious misfortune; second that it did not provide reasons for preferring AFMA's construction of s 27 to that advanced by him; and third that the Panel did not provide reasons as to how it reached its conclusion that he suffered serious misfortune only during the February - November 1998 and July 1999 - April 2000 periods. Mr Kennedy submits that a party is entitled to know why he won or lost. A reading of the Panel's reasons would, it was submitted, leave the fair-minded reader none the wiser as to why he was only partially successful. He relied on the decision of Gobbo J in State Electricity Commission v Commissioner for Equal Opportunity [1992] 1 VR 79 in which his Honour held (at 88) that reasons for decision which fail to disclose the process of reasoning of the decision maker are "defective and show error of law on the face of the record".
56 There can, in my view, be no doubt that the Panel has failed to comply with the requirements of s 160(1)(b) that it "prepare a written statement … setting out the reasons for [its] decision". Were it not for another statutory provision, to which I will shortly refer, it might readily be argued that the Panel has complied with this obligation. It has produced a document of some 20 pages which contains 86 paragraphs which it has published as its reasons for its decision on Mr Kennedy's appeal. The question remains, however, whether the published reasons are sufficiently detailed to meet the obligation imposed by s 160(1)(b).
57 Section 25D of the Acts Interpretation Act 1901 (Cth) provides that, where another Act requires that a Tribunal give written reasons for its decisions "the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based".
58 When tested against this standard the Panel's reasons, in my opinion, are plainly deficient. In dealing with the construction of s 27, the Tribunal deals only with s 27(1)(d) and then makes the conclusionary statement that the interpretation of s 27, advanced by AFMA, is correct. No attempt is made to explain why it is that AFMA's construction is to be preferred to that contended for by Mr Kennedy.
59 The Panel's reasons for fixing on the two periods of illness as being the periods during which Mr Kennedy suffered serious misfortune are equally terse and uninformative. The Panel does no more than record Mr Kennedy's claim, record AFMA's submission relating to the periods of illness, note that there was "much in this submission" and then proceed to its finding. No attempt was made to identify the facts or to explain the process of reasoning which led the Tribunal to reject Mr Kennedy's claim to have suffered serious misfortune continuously from February 1998 to May 2000 or to explain why the Panel was minded to fix on the two periods within the timeframe claimed by Mr Kennedy, as being the relevant periods for the purposes of s 27 of the Management Plan.
60 The critical question is, however, whether the Panel's failure to provide adequate reasons for its decision can give rise to an error of law which would justify a reviewing Court setting aside the Panel's decision.
61 As already noted there is authority to support an affirmative answer to this question. It is to be found in the Victorian Supreme Court's decision in the State Electricity Commission case. Authority is also to be found in decisions of this Court. In Dornan v Riordan (1990) 24 FCR 564, a Full Court held that a failure to give adequate reasons constitutes an error of law justifying the setting aside of an administrative decision. See also Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402; Preston v Secretary, Department of Family and Community Services (2004) 39 AAR 177 at 184; Hill v Repatriation Commission (2004) 207 ALR 470 at 474; and, most recently, Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137. These were cases in which the tribunal concerned had produced cryptic and uninformative reasons such that the reviewing court could not discern why it was that the tribunal had reached the impugned decision. In particular it was not possible to determine whether the correct legal principles had been applied. In Dornan, the Full Court drew on authorities such as Pettitt v Dunkley [1971] 1 NSWLR 376 in which appellate courts had found that trial judges erred in law if they failed to provide reasons or sufficient reasons thereby depriving the appeal court of the capacity to determine whether a verdict had been reached in accordance with law.
62 This approach did not enjoy universal acceptance. In Comcare v Lees (1997) 151 ALR 647 at 656-9, Finkelstein J reviewed the authorities which commenced with Dornan and concluded that, were he not bound by these decisions, he would not follow them. He drew attention to conflicting decisions, including that of Brennan J in Repatriation Commission v O'Brien (1985) 155 CLR 422 at 445-6 and the English Divisional Court in Mountview Court Properties Ltd v Devlin (1970) 21 P & CR 689. He considered it to be inappropriate to draw on cases in which appellate courts found reasons to be inadequate because, in such cases, no remedies such as a statutory order in the nature of mandamus were available to require the relevant trial judges to rectify the deficiencies in their reasons. His Honour also noted that, in the appellate context, the appellable error was founded on common law doctrine rather than on the construction of a statutory obligation to provide reasons. One might add that there is no compelling reason for treating a decision as errant solely because no reasons or no adequate reasons have been advanced to support it, unless one was attracted to Lord Denning's notion that, if a decision-maker fails to give reasons for a decision, a reviewing court could infer that he did not have any good reasons: see Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 at 1007.
63 In Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 108 ALD 329 at 337 Perram J, without expressing a concluded view, said that there was "much to be said" for the views of Finkelstein J in Lees. His Honour suggested two additional considerations which supported Finkelstein J's reasons for doubting the correctness of the decision in Dornan. These additional considerations were:
"First, the reasons which attend an administrative decision are conceptually distinct from that decision and it is the decision, and not the reasons which accompany it, which is the subject of judicial review or, as here, appeal under s 44. The reasons have no legal consequences in themselves. Rather, they provide material from which arguments about the correctness of the decision may be crafted. Their legal relevance is, therefore, derivative from the decision to which they are appurtenant. …
…
Second, once the derivative nature is understood it must follow that the legal requirements attending the production of reasons need have no necessary connexion with the legal requirements attending the decision. A decision accompanied by perfectly adequate reasons may be riddled with legal errors just as a decision which is accompanied by inadequate reasons may be legal impeccable. The fallacy in the view that the provision of inadequate reasons is an error of law in the decision springs from the conflation of rules concerned with the making of the decision itself with rules concerned with the provision of reasons, a conflation which is, in my opinion, wholly without warrant. This is not to say that questions of law do not arise from the operation of rules about the provision of reasons. It is only to say that such questions arise dehors the decision and cannot be errors in the decision itself": at 337-8.
64 The issue was considered by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. In that case the Court dealt with a submission that a decision of the Refugee Review Tribunal should be set aside because the Tribunal had failed to comply with its obligations under s 430 of the Migration Act 1958 (Cth) to provide adequate reasons for coming to the decision. The argument was that the failure of the Tribunal to have regard to certain matters which had been pressed before it rendered its reasons inadequate with the consequence that, on this ground, its decision was a nullity. The Court rejected this argument. Gleeson CJ (at 330) was prepared to accept that, if a decision maker fails to make a finding on some question of fact in the course of giving reasons "that will indicate that it made no finding on that matter; and that, in turn, may indicate that the Tribunal did not consider the matter to be material". The absence of findings on a particular matter may be indicative of error but the failure to refer, in the course of giving reasons, to findings which were not made does not itself constitute reviewable error:
"It is impossible to read the expression "the findings" as meaning anything other than the findings which the Tribunal has made. By setting out its findings, and thereby exposing its views on materiality, the Tribunal may disclose a failure to exercise jurisdiction, or error … or may provide some other ground for judicial review…But all the tribunal is obliged to set out is such findings as it has made…": at 331-2 (emphasis added).
Other members of the Court made similar observations: see per McHugh, Gummow and Hayne JJ at 346, 349 and 351.
65 The issue was further considered by the High Court in Re Minister for Immigration, Multicultural and Indigenous Affairs; ex parte Palme (2003) 216 CLR 212. In Palme the Court held that a failure to discharge the statutory obligation imposed by s 501G of the Migration Act 1958 (Cth),to give reasons for a decision to cancel a visa, did not mean that the decision could be set aside because it was tainted with jurisdictional error. Four aspects of the reasoning in Palme are of present relevance. First, it is necessary to recognise that a distinction is to be drawn between the decision and the reasons for that decision: see Palme at 225. An attack on the reasons which seeks to have the decision set aside fails to appreciate this distinction. This is a different attack from one which focuses on a jurisdictional error arising from the failure of the reasons to refer to, for example, a relevant consideration: cf Yusuf at 351-2.
66 Secondly, it is important to identify precisely what act is being impugned: Palme at 225. In Palme there was an attack by Constitutional writ on the exercise of the power to cancel a visa. In this case, there is an appeal from the Panel's decision to set aside AFMA's decision and substitute one more favourable to Mr Kennedy because it was not sufficiently favourable to his interests. The word "decision" in this context means the final and operative decision of the Panel as provided for in s 150(3) of the Act: Director-General of Social Services v Chaney (1980) 47 FLR 80. Section 161 fixes on the decision as the subject matter of the appeal, not on the reasons.
67 Thirdly, the question of whether a failure to comply with a statutory requirement to provide adequate reasons can affect the exercise of power is one of statutory construction: Palme at 225. There is nothing in the scheme of the legislation which suggests that the provision of inadequate reasons could vitiate a decision of the Panel. On the contrary, given the nature of the Panel's task, the requirement that all operators be parties to the appeal to the Panel (s 144(3) of the Act) and the fact that the allocation of SFRs cannot be implemented until after any application to the Panel is dealt with (s 23(3) of the Act), it could not readily be inferred that the Act intended that a failure to give reasons should invalidate the decision.
68 Finally, it was held in Palme that the appropriate remedy, in the event that a tribunal fails to satisfy a statutory obligation to provide adequate reasons for a decision, is an order in the nature of mandamus: at 224. That remedy can, and should, be sought independently of any rights of appeal such as those provided for in s 161 of the Act. The right of appeal, given by s 161, is confined by the requirement that the appeal be on a question of law from the decision of the Panel. The question must, therefore, be one which arises from the decision and not from any failure, on the part of the Panel, to satisfy its statutory obligations under s 160(1) of the Act. Such a failure, in my view, does not give rise to a question of law relating to the decision itself. Question of law 2(c) asked whether the Panel had complied with the obligations imposed on it by s 160(1)(b) of the Act. A negative answer to that question would not, however, have revealed any error affecting the Panel's decision: cf Birdseye at 326 (per Branson and Stone JJ). It could not, therefore, have assisted Mr Kennedy.
69 Mr Kennedy submitted that Palme may be distinguished on the basis that there is no equivalent of s 501G(4) of the Migration Act in the Act. Where a decision has been made to refuse to grant a visa to a person or to cancel a visa, s 501G of the Migration Act requires the Minister to give the person a written notice which sets out the decision and the reasons for the decision. Section 501G(4) provides:
"A failure to comply with this section in relation to a decision does not affect the validity of the decision".
The relevant parts of the reasoning in Palme do not, however, depend on s 501G(4). As already noted, the Court emphasised the need to distinguish between a decision which is sought to be challenged and the reasons for that decision when determining whether the decision can be impeached for jurisdictional error. In their joint judgment (at 221) Gleeson CJ, Gummow and Heydon JJ said:
"The visa cancellation decision may be reviewed in this court for jurisdictional error. Such error may be found from what is disclosed by reasons provided under s 501G(1)(e). Failure to provide reasons may also be reviewed in this Court and compliance by the Minister with the statutory duty may be ordered. The reasons then provided may furnish grounds for prohibition under s 75(v) [of the Constitution] in respect of the visa cancellation decision. But what is not provided for is for a prosecutor, as in this case, to bypass that earlier step utilising mandamus, and to impeach the visa cancellation decision itself for want of discharge of the duty to provide reasons. There is, as was pointed out in argument, a critical distinction between failure to comply with s 501G(1)(e) and using that failure to conclude that the visa cancellation decision is flawed by jurisdictional error".
See also at 227-228 (per McHugh J).
70 It was open to Mr Kennedy to seek an order of mandamus to compel the Panel to comply with its obligations under s 160(1) of the Act. He did not do so. Instead, he has proceeded to prosecute his appeal to this Court on the basis of the reasons which he, rightly, submits are inadequate. His failure to seek a mandatory order may have been the result of a forensic decision (cf Palme at 224) or for some other reason. Whatever the reason, the inadequacy of the Panel's reasons cannot, consistently with the decision in Palme, be relied on to impeach the Panel's decision.
71 In Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137, the Full Court was concerned with an appeal, under s 44 of the AAT Act, from a decision of the Tribunal to set aside a decision of the Authority to cancel a certificate of approval. Both parties to the appeal accepted that the Tribunal had failed to satisfy the obligation, imposed on it, by s 43(2) of the AAT Act, to provide adequate reasons for its decision. It was common ground that such a failure constituted a "question of law" for the purposes of s 44(1) of the AAT Act. The Full Court said (at [42] - [43]) that:
"In circumstances such as the present, where it is common ground that there is a statutory entitlement to reasons and where such reasons have not been provided and cannot now be provided by the Tribunal member who made the decision, it is inevitable that the decision itself must be set aside.
The primary judge correctly concluded that there had been non-compliance with s 43(2) and ordered that reasons now be provided by the original decision-maker. Compliance with that order is no longer possible. Because of the accepted failure to comply with s 43(2), the Tribunal decision must be set aside and the matter remitted for a new hearing in the Tribunal".
72 The Full Court referred to Dornan and noted that, in Lees, Finkelstein J had acknowledged that he was bound to follow Dornan. It referred to Preston and Hill as authority for the proposition that a "failure to state reasons for a decision - at least in those circumstances where a statement of reasons is a requirement of the exercise of the decision-making process - constitutes an error of law": at [49].
73 There is no reference, in the Full Court's reasons, to either of the High Court's decisions in Yusuf and Palme. Given that it was common ground that, in giving inadequate reasons, the Tribunal had committed a jurisdictional error of law, I assume that the Court's attention was not drawn to these decisions although I note that, in the primary judge's reasons, His Honour observed, referring to Yusuf, that "it is unlikely that the error of law constituted by inadequate reasons could be jurisdictional": see Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 108 ALD 329 at 345. Whilst it may be accepted that the failure, on the part of a decision maker, to comply with a statutory obligation to provide reasons might constitute an error of law it does not follow that such an error is jurisdictional in nature such as to justify the setting aside of the impugned decision. That position does not change simply because the decision-maker is no longer available to provide further and better reasons. That circumstance does not, in my respectful opinion, render it inevitable that the decision under review should be set aside.
74 In my opinion, I am bound by Palme to hold that the Panel's failure to comply with its obligations under s 160(1)(b) of the Act does not constitute a jurisdictional error which would warrant the setting aside of the Panel's decision.
75 No order was sought by Mr Kennedy, in the course of the present appeal, requiring the Panel to provide reasons which satisfied its statutory obligations. This decision was, no doubt, influenced, in part at least, by the fact that one of the two members of the Panel who made the decision (Mr Baston) is no longer a Panel member. Had a mandatory order been made, the Panel probably could not have complied with it because the reasons given must be those of the decision-makers and not their successors: cf State Electricity Commission at 86.