It is well established that a decision-maker is not required to undertake all of the steps in a decision-making process personally and may rely upon support from others in collecting, organising and summarising relevant materials.
The assistance provided by others might include allocating to another person the function of giving a person affected by the decision an opportunity to be heard about the decision, whether by providing documents and submissions for consideration or by an oral hearing. Under some decision-making schemes this may not be possible, for instance, if the legislation specifically requires the person making the decision to have regard to certain material.
Where an applicant’s credibility is in issue, there are also some limitations on a decision-maker relying on an oral hearing conducted by someone else. An oral hearing may assist in resolving credibility issues by allowing the decision-maker to interact directly with the witness by asking questions, considering his or her answers, and having regard to the witness’s demeanour. If the decision-maker only relies on a transcript, or recording, of an interview they will not have the advantage of observing the person giving evidence and forming impressions based on those observations: Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326.
Most commonly, a decision-maker in a government department will have someone else manage the collation of materials and prepare a briefing document for their consideration in making the decision.
Where a decision-maker does rely on someone else for assistance, any error made by that person in the preparation of material for consideration by the decision-maker could flow through to cause an error in the decision itself. For instance, if the decision-maker relies entirely on a summary to inform himself or herself of the issues and materials for consideration, and the summary does not address a relevant issue or refer to relevant material, the decision-maker may be found to have failed to take into account all relevant issues or failed to consider relevant material: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24, at 30. It is therefore important that briefing material prepared for a decision-maker accurately summarise the information submitted and identify all relevant claims that need to be addressed by the decision-maker.
Form of a briefing paper and statement of reasons
In addition to the summary of the information to be considered by the decision-maker, a briefing document should set out the issue to be determined, the legislation under which the decision is to be made, and the procedural history of the decision (eg. when application forms were received, when notices were issued, steps taken to ensure procedural fairness has been afforded to those affected by the decision).
A briefing paper prepared to assist a decision-maker may either be in the form of a neutral evaluation of the issues and materials available for consideration, or in a form that, in effect, presents to the decision-maker a set of reasons to support a recommended decision.
The nature of the decision to be made, and the circumstances in which it is made, will have an impact on the approach taken in briefing the decision-maker, as well as the extent of the briefing materials that are prepared for the decision-maker. However, generally, providing the decision-maker with a summary that provides a neutral evaluation of the issues will better ensure that the decision-maker will have considered all the issues and applied an independent mind to the decision. Of course, the brief may recommend that the power be exercised in a particular way, but the decision-maker should also be given the opportunity to choose from the full range of options as to how the power may be exercised. If this approach is used, the brief itself cannot be adopted as a statement of reasons: Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex parte Palme (2003) 216 CLR 212, at 227. (For the content of reasons see the Administrative Decisions (Judicial Review) Act 1977, s13(1) and Acts Interpretation Act 1901, s25D.) However, a separate draft statement of reasons can also be provided that the decision-maker can adopt if they accept the recommendation as to the decision: Maxwell v Minister for Immigration and Border Protection (2016) 249 FCR 275.
In most cases it is preferable for a statement of reasons to be prepared at the time that the decision is made, rather than prepared subsequent to the making of the decision: CRI026 v Republic of Nauru (2018) 355 ALR 216, at [61].
Where possible, it is also preferable that the decision-maker is provided with copies of relevant documents that have been received in relation to the decision. There may, however, be times where it is not possible to provide all of the materials, for example where the materials are extensive and it is reasonable for the decision-maker to rely on a summary without needing to consider the materials themselves. Where the materials are not provided to the decision-maker it will be of even greater importance that the brief provides an accurate and comprehensive summary of the content of the materials: White v Ryde Municipal Council (1977) 36 LGRA 400, at 924.
In addition, a briefing document should include:
- a statement, which may be adopted by the decision-maker, to the effect that all relevant matters and evidence have been considered;
- the various options as to how the power may be exercised, and an instruction to the decision-maker to select the option which accords with the way in which he or she has decided that the power should be exercised; and
- a schedule of materials submitted by those affected by the decision or otherwise obtained by the Department that are relevant to the decision.
Government lawyers should remember that while courts will generally be prepared to infer that a decision-maker has read a briefing note provided to them for the purposes of exercising a statutory power, a court may be reluctant to draw other inferences about what the decision-maker considered, or read, or did, at the time the power was exercised, unless that is plain from other evidence, or plain from the reasons themselves: Stambe v Minister for Health (2019) 270 FCR 173, at [72].
This article was written by Will Sharpe, Partner, Michael Palfrey, Partner and Neil Cuthbert, Senior Associate.
