Does a decision-maker need to read all relevant documents, if they have an accurate summary?

Council elected bodies, CEOs and other delegates rely upon others to synthesise large amounts of material and to provide recommendations for proposed decisions.

Ministers rely on departmental staff in a similar way. It is therefore noteworthy for our local government readers that the High Court of Australia has, in the recent case of Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11, determined that the relevant Commonwealth Minister in that case was not obliged to read all available relevant material—including the actual representations made by the affected party—with respect to a decision not to revoke the cancellation of a visa. The Minister was instead entitled to rely upon a departmental summary and to adopt draft reasons prepared by the department.

This conclusion was reached by the High Court notwithstanding the grave consequences of the decision (in effect, deportation of the affected party), and the fact that the Minister elected to exercise the power personally rather than to delegate the exercise of that power.

Facts of the case

• The respondent was a citizen of the United States of America whose visa was mandatorily cancelled in 2019 pursuant to the Migration Act 1958 (Cth).
• The respondent made representations to the Minister seeking that the decision to cancel the visa be revoked.
• The Minister was supplied with a 13-page submission from the Department of Home Affairs summarising the representations, a 15-page draft statement of reasons in support of a decision not to revoke the cancellation, copies of the representations made by the respondent, and other relevant material. The documents totalled 213 pages.
• The Minister only read the departmental summary and the draft reasons. The Minister did not read the actual representations themselves, or any of the other material.
• The Minister made the decision on 14 April 2021 not to revoke the visa cancellation, adopting the draft reasons.
• The respondent challenged this decision. Prior to the matter reaching the High Court of Australia, the Full Court of the Federal Court of Australia sided with the respondent, holding that the Minister was required to “personally and directly consider the representations made in support of the revocation” when exercising the relevant power.
• The Minister appealed against this decision, to the High Court.

The respondent’s argument

In the High Court, the respondent essentially argued that the tone of the representations to the Minister in support of revoking the visa cancellation was not adequately grasped by the Minister because the Minister did not personally read all the representations. Therefore, the Minister had not given proper consideration to all relevant material when making the decision.

The Minister’s argument

The Minister argued that he was lawfully able to rely on the summary and to adopt the draft reasons prepared by the department, because the summary was accurate and complete and because the reasons accurately represented why the Minister reached the decision.

The High Court’s Decision

The High Court held that the Minister was not required to read every document in order to make a lawful decision, for the following reasons:

• Although the legislative scheme required the Minister to bring their mind to bear upon the facts stated in the representations and the arguments or opinions put forward, and to appreciate who is making the representations, it does not follow that the Minister was obliged to personally read the original representation documents.
• The law recognises that the Minister does not work alone but makes decisions with the assistance of the department.
• The Minister may rely upon departmental briefs and submissions which accurately summarise and order that material when exercising a power.

What does this mean for councils?

This case reinforces the position that, generally, a decision-maker can make a lawful decision by relying on a summary of relevant information with respect to a matter, even if they have not read every single relevant document. This is so even with respect to important decisions.

Applying these concepts to local government, this case supports the position that the elected body or any delegate is generally not obliged to actually read every single relevant document with respect to a matter (or indeed every single document contained within a report which has been supplied to them) in order to make a lawful decision on that matter, so long as they also have a summary of that material which draws their attention to all salient facts and matters.

However, there are two caveats worth noting here.

Firstly, when a decision-maker does rely on a summary of material, whether or not the decision is lawful will depend largely on the quality of the summary. It was important in this case that the summary prepared by the department was accurate and covered all relevant matters (even if it allegedly did not convey the ‘tone’ of the representations). If the Minister had relied on an inaccurate or incomplete summary, the Minister’s decision might have been invalid. Similarly, if a council report is inaccurate, there is a risk that any decision made in reliance upon that report might be invalid.

Secondly, the legislative provision which was examined by the High Court in this case does not actually expressly say that the Minister must consider the representations. This is instead merely a necessary implication of the provision which has been developed as a matter of common law. The Court was guided by that common law. Therefore, the extent to which this case might assist in circumstances where the relevant legislative provision does expressly oblige the decision-maker to consider representations or other documents is uncertain. It would most likely depend upon the specific legislative context. There are various examples of such provisions which apply to councils.

In our view, especially when dealing with complex matters, it is generally good practice to provide a decision-maker with both a summary of relevant material and copies of (or references to) the actual material itself, so that the decision-maker can review any or all documents, if they wish. However, the better the summary, the less likely it is that the decision-maker does actually need to have reviewed those other documents in order to make a lawful decision.

Where legislation requires the decision-maker to consider submissions or representations or other documents, then particular care should be taken to ensure that any summary contains a full account of the essential content of those documents, and the actual documents themselves should also be provided to the decision-maker.

Norman Waterhouse has extensive experience in advising councils on all aspects of decision-making, from the preparation of reports, and up to and including judicial review proceedings.

For more specific information on the case described in this article, or regarding rates and charges generally, please contact Felice D’Agostino on +61 8 8210 1202 or FDAgostino@normans.com.au, Dale Mazzachi on +61 8 8210 1221 or DMazzachi@normans.com.au or Chris Alexandrides on +61 8 8210 1299 or CAlexandrides@normans.com.au at Norman Waterhouse Lawyers.