The latest from the Federal Court: October 2016

Administrative law

Where the AAT gives oral reasons at the time of decision and written reasons later – degree of permissible departure in later written reasons from earlier oral reasons

In Negri v Secretary, Department of Social Services [2016] FCA 879 (5 August 2016) the Court (Bromberg J) set aside a decision of the Administrative Appeals Tribunal (AAT).

The applicant sought a Disability Support Pension under the Social Security Act 1991 (Cth). Her claim was rejected by a Centrelink officer, then on internal review, and then again at the Social Security Appeals Tribunal. The applicant then sought merits review at the AAT.

The AAT also rejected her claim, giving ex tempore oral reasons. The applicant requested written reasons under s 43(2A) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The applicant later filed a notice to appeal in the Federal Court. On that same day, the AAT delivered its written reasons.

An interesting and significant question which arose was: what were the AAT’s reasons? The Court had to consider whether it was to have regard to the AAT’s oral reasons only, its written reasons only, or both sets of reasons. The applicant submitted that the written reasons substantially departed from the earlier oral reasons, and that the Court should only have regard to the oral reasons.

The Court found (at [10]) that based on s 43 of the AAT Act, the reasons for the decision are not themselves the ‘decision’. When providing written reasons as requested under s 43(2A), the AAT is permitted to elaborate upon its oral reasons and to improve their expression, ‘as long as they are “reasons for [the Tribunal’s] decision”’ (at [11]).

As to whether something passes from permissible elaboration to impermissible departure, Bromberg J explained (at [27]): ‘A decision is a sum of conclusions. The ultimate conclusion will usually be based on intermediate conclusions. Each conclusion is arrived at by a process of reasoning, that is, a progression along a path from premise to conclusion through a process of induction or deduction. The reasons given by a decision-maker should expose or explain the decision-maker’s reasoning. That is the function of reasons for decision. In requiring the Tribunal to give reasons for its decision, s 43(2) of the AAT Act requires an exposition of the Tribunal’s reasoning for its decision. Section 43(2A) requires that, upon request, the reasoning of the Tribunal be exposed or explained in writing. As I have said, the reasons or explanation given in writing may be different to that given orally. Different reasons, as between those provided orally and those later provided in writing, are not necessarily demonstrative of different reasoning. As long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B)’.

Whether the AAT’s written reasons departed from its oral reasons to the point of revealing new reasoning is a question of degree (at [28]). The Court made the following general statements (at [30]):

‘(1) Am I to have regard to the Tribunal’s oral reasons only, its written reasons only, or both sets of reasons? The answer is, both.

(2) In the latter case which (if any) is to have predominance? The answer is that I will presume, consistently with the certification appearing after the Tribunal’s written reasons, that they are the reasons for the subject decision. If I am satisfied, however, that a written reason is not a reason for decision—if, for example, it is clearly inconsistent with the reasoning of the Tribunal (as made apparent by the oral reasons) sufficiently to reveal new or substantially-altered reasoning—I will ignore the written reason and rely upon the oral reason.

(3) If one is to have predominance what is the role of the other? The oral reasons will be relevant in assessing any submission that the written reasons are not, in fact, the reasons for decision of the Tribunal. Where a written reason is found not to have been a “reason for decision” of the Tribunal, any corresponding oral reason assumes primary significance. It seems to me that oral reasons may also be used, with caution, to clarify an ambiguity in the written reasons.’

In this application, the Court held that the oral and written reasons could stand consistently, although the AAT ‘flirted dangerously with impermissible alteration to its reasoning’ (at [62]).

Various alleged errors of law were rejected. However the appeal to the Federal Court was allowed because the AAT erred by failing to deal with a clearly-articulated submission upon which strong reliance was put (at [86]-[105]).