A decision without reasons is very hard to challenge, and everybody involved knows it. That is why the question “can I be told why?” is so often the practical beginning of a legal problem.
Where the Constitution requires reasons expressly
Where a person entitled to bail under section 42(6) is refused bail, the court or person refusing bail shall, on request by the person concerned or their representative, state in writing the reason for the refusal.
Two points: the duty is triggered on request, so ask; and the reasons must be in writing. Section 42(7)(b) then allows an application to the Supreme Court or the National Court in a summary manner for release. See why was my bail refused?
Other express requirements appear across the Constitution. Section 14(5) requires the Speaker’s certificate to state the date of each vote, the number of seats and the votes cast. Section 37(20) requires that where an offender is transferred away from where their relatives reside, the reason shall be endorsed on the offender’s file. And the whole architecture of section 37 assumes that a person can know the case against them.
Reasons as part of acting fairly
There is no single provision saying “every decision-maker must give reasons”. What there is, in section 59(2), is the duty to act fairly and, in principle, to be seen to act fairly — expressed as a minimum.
Whether fairness requires reasons in a particular case turns on what is at stake and on the structure of the decision. Reasons are far more likely to be required where:
- the decision affects a person’s liberty, livelihood, property or status;
- there is a right of appeal or review which cannot sensibly be exercised without knowing the basis of the decision;
- the decision departs from a settled practice or from an expectation the authority created; or
- the decision rejects an application that on its face met the stated criteria.
Section 60 directs the courts to develop a system of natural justice and administrative law specifically designed for Papua New Guinea, taking account of the National Goals and of typically Papua New Guinean procedures — so the content of the duty is not fixed by overseas authority.
Where the duty is narrowed
Where a law allows an act to be done in the “deliberate judgement” of a person or body, section 62 reduces natural justice to a requirement that the judgement not be biassed, arbitrary or capricious, and makes the act non-justiciable to the extent it is so done — subject to section 155(5) and to any Constitutional Law or Act. Reasons are correspondingly less likely to be required, though a decision that cannot be explained at all begins to look arbitrary.
How to ask for reasons
- Ask in writing, promptly, and keep a copy. Date it.
- Identify the decision — what was decided, by whom, and when.
- Ask for the legal basis: which Act, which section, which power.
- Ask for the material relied on, and for any report or recommendation considered.
- Invoke section 51 where the document is an official document and you are a citizen without dual citizenship.
- Set a reasonable deadline and say what you will do if it passes.
If you get no answer
- The Ombudsman Commission — its jurisdiction covers defective administration by governmental bodies, and unexplained or unreasoned decisions are core business.
- Judicial review in the National Court — a decision that cannot be explained is vulnerable, and unreasoned refusal may itself support an inference of error.
- Section 155(4) — the National and Supreme Courts have an inherent power to make orders necessary to do justice in the circumstances of a particular case.
- Section 57 — where a Basic Right is engaged, with damages under section 58.
Written reasons fix the decision-maker’s position. They reveal whether the correct law was applied, whether relevant matters were considered and irrelevant ones excluded, and whether the decision was rational. Without them, a review court is guessing — and so are you.
Sources
- Constitution — ss 14(5), 37(20), 42(6)–(7), 51, 57, 59–62, 155
- Organic Law on the Ombudsman Commission
- Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317
Constitutional sections are amended. Before relying on anything here, read the current text: the Constitution on PacLII. If a decision matters to you, get advice — start with the Office of the Public Solicitor.