There is clear authority in Australia that reasons for judicial decisions should ordinarily, although not always, be provided and that a failure to provide reasons, where they are required, is an error of law. This article makes two central doctrinal arguments. The first doctrinal argument is that it is a defining characteristic of courts and of the exercise of judicial power that reasons for judicial decisions are always given. The second doctrinal argument is that a failure to provide reasons is not just an error of law but is a jurisdictional error.
This article also provides important statistical data on the practice of giving reasons for applications for leave and special leave to appeal by the New South Wales Court of Appeal and the High Court. That analysis shows that the New South Wales Court of Appeal always complies with the constitutional duty to provide reasons for judicial decisions in respect of leave to appeal applications but that the High Court only sometimes complies with that constitutional duty in respect of special leave to appeal applications.Beck argues
The obligation of judicial officers to provide reasons for their decisions has been described by Sir Anthony Mason, a former Chief Justice of the High Court, as an element of the broader 'culture of justification’ that exists in modern democracies. While there is an increasing international scholarly literature examining the duty to give reasons for judicial decisions, the Australian scholarly literature is far less developed. This article contributes to that developing literature by arguing that in Australia there is an absolute constitutional duty to provide reasons for judicial decisions and by examining whether the general practice of the New South Wales Court of Appeal and the High Court complies with that duty when deciding applications f or leave or special leave to appeal.
There is clear authority in Australia that reasons for judicial decisions should ordinarily, although not always, be provided and that a failure to provide reasons, where they are required, is an error of law. This article makes two central doctrinal arguments. The first doctrinal argument is th at it is a defining characteristic of courts and of the exercise of judicial power that reasons for judicial decisions are always given. The second doctrinal argument is that a failure to provide reasons is not just an error of law but is a jurisdictional error. This article also provides important statistical data on the practice of giving reasons for applications for leave and special leave to appeal by the New South Wales Court of Appeal and the High Court. That analysis shows that the New South Wales Court of Appeal always complies with the constitutional duty to provide reasons for judicial decisions in respect of leave to appeal applications but that the High Court only sometimes complies with that constitutional duty in respect of special leave to appeal applications.
The article is structured as follows. Part II examines the existing authorities concerning the duty to give reasons for judicial decisions. Relying on the underlying principles of the authorities considered in Part II, Part III develops the argument that it is a defining characteristic of courts and of the exercise of judicial power that reasons for judicial decisions are always given. Part IV furthers the analysis in Part III by explaining what amounts to adequate reasons in order to comply with the constitutional duty to provide reasons for judicial decisions.
In Part V, the article examines the consequences of a failure to comply with the constitutional duty to provide reasons for judicial decision. Part V argues that a failure to comply with the duty is not simply an error of law, as existing authorities hold, but is in fact a jurisdictional error. The jurisdictional error arises because a failure to comply with the duty impairs the institutional integrity of the court and, possibly also, because a failure to comply amounts to a denial of procedural fairness. Part VI examines the content of the duty to give reasons in respect of applications for leave or special leave to appeal. Part VI explains the scope of the constitutional duty in the context of leave and special leave to appeal applications and undertakes an empirical analysis of decisions of the High Court and the New South Wales Court of Appeal to see whether practice is consistent with principle. Part VI also discusses the implications of the High Court’s regular failure to comply with the constitutional duty. Part VII offers some concluding comments.The Final Report of the Referendum Council meanwhile has called for constitutional recognition of Australia's First Nations peoples.
The report states
The Council recommends:
That a referendum be held to provide in the Australian Constitution for a representative body that gives Aboriginal and Torres Strait Islander First Nations a Voice to the Commonwealth Parliament. One of the specific functions of such a body, to be set out in legislation outside the Constitution, should include the function of monitoring the use of the heads of power in section 51 (xxvi) and section 122. The body will recognise the status of Aboriginal and Torres Strait Islander peoples as the first peoples of Australia. It will be for the Parliament to consider what further definition is required before the proposal is in a form appropriate to be put to a referendum. In that respect, the Council draws attention to the Guiding Principles that emerged from the National Constitutional Convention at Uluru on 23–26 May 2017 and advises that the support of Aboriginal and Torres Strait Islander peoples, in terms of both process and outcome, will be necessary for the success of a referendum.
In consequence of the First Nations Regional Dialogues, the Council is of the view that the only option for a referendum proposal that accords with the wishes of Aboriginal and Torres Strait Islander peoples is that which has been described as providing, in the Constitution, for a Voice to Parliament.
In principle, the establishment by the Constitution of a body to be a Voice for First Peoples, with the structure and functions of the body to be defined by Parliament, may be seen as an appropriate form of recognition, of both substantive and symbolic value, of the unique place of Aboriginal and Torres Strait Islander peoples in Australian history and in contemporary Australian society.
The Council recommends this option, understanding that finalizing a proposal will involve further consultation, including steps of the kind envisaged in the Guiding Principles adopted at the Uluru Convention.
The Council further recommends:
That an extra-constitutional Declaration of Recognition be enacted by legislation passed by all Australian Parliaments, ideally on the same day, to articulate a symbolic statement of recognition to unify Australians.
A Declaration of Recognition should be developed, containing inspiring and unifying words articulating Australia’s shared history, heritage and aspirations. The Declaration should bring together the three parts of our Australian story: our ancient First Peoples’ heritage and culture, our British institutions, and our multicultural unity. It should be legislated by all Australian Parliaments, on the same day, either in the lead up to or on the same day as the referendum establishing the First Peoples’ Voice to Parliament, as an expression of national unity and reconciliation.
In addition, the Council reports that there are two matters of great importance to Aboriginal and Torres Strait Islander peoples, as articulated in the Uluru Statement from the Heart, that can be addressed outside the Constitution. The Uluru Statement called for the establishment of a Makarrata Commission with the function of supervising agreement-making and facilitating a process of local and regional truth telling. The Council recognises that this is a legislative initiative for Aboriginal and Torres Strait Islander peoples to pursue with government. The Council is not in a position to make a specific recommendation on this because it does not fall within our terms of reference. However, we draw attention to this proposal and note that various state governments are engaged in agreement-making.
