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‘The Idea of Perfection’ – when is your administrative decision truly complete?

20 February 2024

3 min read

#Government, #Administrative Law

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‘The Idea of Perfection’ – when is your administrative decision truly complete?

A ‘perfected’ decision is one that is legally complete and not capable of being unilaterally withdrawn by the decision-maker. Understanding whether a decision has been perfected is important for two main reasons and the arguments for and against perfection may depend on what those reasons are. 

Is the important date the one on which an individual accrues a right to seek review of the decision? Or is the important date the one on which the decision takes effect?

The decision to delegate a power under legislation, for example, takes effect once the delegator has signed the instrument – or a later date if the delegator has stipulated a commencement date in the instrument. Whether the delegate is notified of the delegation does not affect its validity. Indeed, the delegate may have been entirely ignorant or reckless as to whether they actually held a delegation, and that doesn’t actually matter (at law) if the instrument has nevertheless taken effect.

If the decision affects an individual (rather than a member of a class), then the relevant date is the date at which the decision was ‘perfected’ – that is, where no more steps remain in the process. Up until that point, it can be argued that the decision is not really a decision and can be unilaterally withdrawn by the decision-maker.

What constitutes a ‘perfected’ decision?

In the case of Semunigus v Minister for Immigration and Multicultural Affairs [2000] FCA 240, the Federal Court determined that the two elements necessary for an administrative decision to be perfected were:

  • the mental step of the decision actually having been made. In reality, this will be evidenced by some record of the decision, which may be what people are referring to when they ask for the date on which the decision was ‘made’
  • some sort of active or overt step that demonstrates the decision is complete – though the judges in this case differed on whether that step was when the decision was notified to the Minister or to the applicant.

In most contexts, given that appeal rights accrue only once the applicant or the other affected party has been notified, it is probably reasonable to adopt a position that the decision has not been perfected until this has occurred. If multiple parties are affected, perfection is still attained when the first party receives notification – beyond that the decision cannot be withdrawn. There has been an overt act.

The requirement for the mental process of decision-making was also examined in Pintarich v Deputy Commissioner of Taxation [2018] FCAFC 79. In this case, the Federal Court found that a machine-generated letter, despite bearing the delegate’s purported signature and being reasonably relied upon by the recipient, did not constitute an actual decision because the delegate had not actually considered the matter.

There is an interesting and fine distinction here between recent developments in the meaning of “unreasonableness” in decision-making and a decision not having been made at all. In the 2019 case of Stambe v Minister for Health [2019] FCA 43, the Federal Court found that despite the Minister’s signature on a record of decision, there was no actual evidence that the Minister had turned his mind in any real sense to the evidence and recommendations provided.

While the lack of perfection is not the only reason for remaking an administrative decision, it is often the most straightforward. Even if you’re not seeking avenues to set aside a decision, it is best administrative practice to take all necessary steps to ensure your decision is complete and documented.

We will continue to discuss the various legal options for remaking a decision, the pros and cons of each approach, and the practical aspects of how to navigate these with your internal client and the parties affected by the decision in our upcoming Australian Government lawyers CLE day on 12 March. View our program and register here.

If you have any questions about this article, please get in touch with our team below.

The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

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