Reasons, reasonableness and intelligible justification in judicial review

Abstract

Australian courts have not recognised a general obligation to give reasons for administrative decisions. This article considers two contexts in which the inadequacy of reasons may nonetheless give rise to legal consequences: first, where there is a breach of a statutory obligation to give reasons and, second, where deficiencies in justification are relevant to the application of the unreasonableness ground of review. The aim is to contribute to a clearer understanding of the ways in which the inadequacy of reasons may reveal or constitute reviewable errors. More broadly, the article considers how review of the adequacy of reasons fits within the conceptual framework of judicial review in Australia given the propensity for a procedural obligation to give reasons to invite analysis of the substance of reasons. A possible strategy to limit any slide from the review of 'procedural' reason-giving obligations into 'substantive' review is to distinguish 'intelligible' reasons and 'persuasive' reasons. The overall argument is that although the concept of intelligibility is being explored in the cases, even minimal intelligibility requirements will have substantive elements and, further, there is as yet little judicial guidance as to how any inquiry into the intelligibility of reasons can be quarantined from broader substantive questions about the persuasiveness of justifications.