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Requests for statement of reasons - Judicial Review Act

Posted by John Butt on 30 November 2016

Decisions for which reasons need not be given

Our government clients frequently receive requests by aggrieved parties for provision of a written statement of reasons for their decisions under the Judicial Review Act ("JR Act").

Often those requests are a precursor to a future court challenge by the aggrieved party to the lawfulness of the decision. Such a challenge is usually made by an application for judicial review.

If statement of reasons is provided it may become evidence in the later court challenge.

It is therefore important to note that not all classes of decision carry with them an obligation to provide a statement of reasons.

Schedule 2 of the JR Act lists the classes of decisions for which a decision maker is immune from the obligation under Part 4 of the JR Act to provide a written statement of reasons.

From a government perspective those immune classes of decision most notably include:

8 Appointment decisions

Decisions relating to-

(a) the making of appointments-
       (i) to the Staff of a State authority or local government authority; and

(b) the engagement of persons as employees-

       (ii) by a State authority or local government authority; and

11 Local government budgets

Decisions relating to the framing of budgets by local government authorities.

12 Local Government rates

Decisions relating to the excercise of the power of local government authorities

(c) to make and levy rates; or

(d) to impose fees, charges, fares, rents and dues.

13 Tendering and awarding of contracts

Decisions relating to-

(a) the selection of a tenderer following the conduct of a competitive tendering process; and

(b) the awarding of contracts.

We have encountered situations where our government clients have provided a written statement of reasons for a class of decision immune from the obligation to provide them.

Whilst there is exists no prohibition to the provision of a written statement of reasons in those circumstances, the issue of same can prove problematic in any later court challenge.

If you receive a request for a written statement of reasons then we urge you to seek our advice as to whether the decision is of a class immune from the obligation under Part 4 of the JR Act to provide a written statement of reasons.

John ButtAuthor: John Butt
About: John is a partner in the firm's Dispute Resolution & Litigation Group.
Tags: Judicial Review kingandcompany Litigation

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