Administrative law mythbuster no 07: Briginshaw

What people think the Briginshaw principle means

Applicants commonly assert that an administrative decision-maker has made an error of law on the basis that they have failed to apply Briginshaw v Briginshaw (1938) 60 CLR 336. The Briginshaw principle is understood as requiring the exercise of care when making findings of fact in determining serious civil matters.

Briginshaw concerned a petition for divorce filed by Mr Briginshaw on the grounds that Mrs Briginshaw had committed adultery. At the time of the petition, the parties had ceased living together. Mrs Briginshaw had moved from their shared home in Melbourne to Devonport, Tasmania, and taken up residence at a boarding house. Prior to her departure, she secured an order requiring Mr Briginshaw to pay her maintenance of 35 shillings per week. Mr Briginshaw's allegation of adultery was based upon evidence that Mrs Briginshaw received a lift home and a kiss from a man after a dance. The primary judge dismissed the divorce petition because he was not sufficiently satisfied of the adultery. Mr Briginshaw argued on appeal that the primary judge set too high a standard of proof and that, in any event, an inference could be drawn that adultery had been committed.

The High Court was asked to clarify the relevant standard of proof for allegations of serious misconduct in civil proceedings. Justice Dixon found that in such civil proceedings, “reasonable satisfaction [of a fact] is not a state of mind that is attained or established independent of the nature of the fact or facts to be proved”. Justice Dixon then went on to find that serious allegations should be accepted more cautiously, giving consideration to:

• the seriousness of the allegations made;
• the inherent unlikelihood of an occurrence of a given description, and
• the gravity of the consequences flowing from a particular finding.

The High Court ruled that due to the limited evidence put forward by Mr Briginshaw, it was not satisfied that the alleged adultery had taken place on the civil standard of proof (balance of probabilities), and the petition was dismissed.

The Briginshaw principle has since become widely adopted as a common law rule of evidence and codified in section 140 of the Evidence Act 1995 (Cth). The Briginshaw principle has also been applied in a number of administrative decisions and it is often argued that administrative decision-makers are bound by it.

So that’s not quite right?

Not in the context of administrative decision-making. The rules of evidence do not apply to the exercise of executive decision-making power. In the Commonwealth jurisdiction, this is reflected in section 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) which provides "the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.". As the Briginshaw principle is an evidentiary rule, no error of law arises from a failure to apply it: see Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555.

Sullivan concerned an appeal from a decision of the AAT to affirm the cancellation of the Applicant's helicopter licence. In dismissing the appeal, Justices Flick and Perry found that the AAT is "freed from the rules of evidence" and thus as a matter of law the Briginshaw principle does not directly apply. However, Justices Flick and Perry added that such freedom ‘does not absolve it from the obligations to make findings of fact based on material which is logically probative in which the rules of evidence provide a guide’.

While administrative decision-makers have sometimes chosen to apply the principle, the Court in Sullivan made it clear that these cases are “nothing more” than the decision maker choosing to apply the rules of evidence, permitted under s 33(1)(c) of the AAT Act.

What you need to remember about Briginshaw

Briginshaw establishes an evidentiary principle which serves primarily as a reminder to administrative decision-makers that findings of fact must be made upon logically probative evidence.

Application of the principle may assist decision-makers to apply the relevant statutory standard of satisfaction that conditions the exercise of statutory power. There are a number of different formulations of the mental state required to enliven a statutory power. For example:

• "The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person" (Australian Citizenship Act 2007, section 17(3))
• "The Secretary may suspend the accreditation of a person as an assessor if: … (b) the Secretary is otherwise reasonably satisfied that the person has not properly applied the assessment methods and standards…" (Building Energy Efficiency Disclosure Act 2020, section 28);
• "The Director of Human Biosecurity may give a direction for an individual to comply with a biosecurity measure only if the Director is satisfied, on reasonable grounds, that the biosecurity measure contributes to reducing the risk of…" (Biosecurity Act 2015 (Cth) section 72(4));
• "This section applies if: (a) the Secretary believes on reasonable grounds that a care recipient is entitled to compensation under a judgement…: (Aged Care Act 1997 (Cth) section 48-6(1)).

In determining whether an administrative decision-maker has formed the state of satisfaction required to cancel a person's licence or suspend their accreditation (for example), a Court will consider whether the decision-maker was capable of reaching that conclusion on the evidence before them (among other considerations). In this regard, the principles in Briginshaw may assist decision-makers in the process of weighing evidence and making defensible decisions.

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• Administrative law mythbuster no 05: Shi v Migration Agents Registration Authority (2008) 235 CLR 286
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